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Human Services Legislation Amendment Bill 2011

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2010

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the Minister for Human Services

the Honourable Tanya Plibersek, MP)

 



HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010

OUTLINE

The Department of Human Services includes the Child Support Program and CRS Australia.  The Portfolio which also includes Centrelink and Medicare Australia has been integrating back-office support services and some customer-contact areas including introduction of some co-located shopfronts.

The Human Services Legislation Amendment Bill 2010 (referred to in this Explanatory Memorandum as " the Bill ") formalises the changes already under way and further integrates service delivery agencies in the Portfolio by:

·            The abolition of the statutory offices of Chief Executive Officer of Medicare Australia and Chief Executive Officer of Centrelink; and

·            The creation of the statutory offices of Chief Executive Medicare and Chief Executive Centrelink within the Department; and

·            The abolition of Medicare Australia and Centrelink as statutory agencies;

·            Providing for service related functions currently delivered by Medicare Australia and Centrelink in support of their Chief Executives to be delivered by Departmental employees; and

·            Providing for new functions taken on by the Chief Executive Medicare and the Chief Executive Centrelink in the future to be delivered by Departmental employees.

These changes involve amendments of provisions of the Medicare Australia Act 1973 (the MA Act ) and the Commonwealth Services Agency Delivery Act 1997 (the Centrelink Act ). 

The Bill brings in amendments to clarify the operation of program secrecy provisions after the restructure.  The amendments are intended to ensure that the secrecy provisions operate in substantially the same way after the restructure and, in particular, to ensure that there are no new kinds of data sharing without customer consent.  The amendments:

·            bring in new defined terms of "medicare programs" and "centrelink programs" to replace the current secrecy provisions' focus on agencies as the basis for regulating information sharing;

·            clarify that, if more than one secrecy provision applies to the same information and any applicable secrecy provision permits the use, disclosure or recording of the information, then the use, disclosure or recording is taken to be consistent with all of the applicable secrecy provisions.  (The Bill does not amend the Privacy Act 1988 .)

The Bill also:

·            amends the Child Support (Registration and Collection) Act 1988 (the CS(R&C) Act) to align the provisions for the appointment of the Child Support Registrar with the provisions for the appointment of the Chief Executive Centrelink and the Chief Executive Medicare; and

·            makes consequential amendments to a number of other Acts that currently refer to the agencies or statutory authorities which will be abolished.

The amendments to formalise the new integrated structures are to commence 1 July 2011.  Transitional arrangements will ensure that these changes do not disrupt service delivery to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      customers. 

The Bill also amends investigative search and seizure provisions of the Part IID of the MA Act.  Many of the provisions in Part IID of the MA Act were modelled on earlier versions of corresponding provisions in the Crimes Act 1914 .  Because there have been amendments to the Crimes Act over time some of these provisions in the MA Act are no longer aligned with the Crimes Act provisions.  The main purpose of the proposed amendments of Part IID is to bring these provisions into closer alignment with the Crimes Act provisions. 

Financial impact statement

The amendments in this Bill have no financial impact.

REGULATION IMPACT STATEMENT

The Office of Best Practice Regulation has been consulted and has agreed that no Regulatory Impact Statement is required for this legislation.

 



Abbreviations

The following abbreviations are used in this explanatory memorandum

AIA means the Acts Interpretation Act 1901

CSDA Act means the Commonwealth Services Delivery Agency Act 1997

MA Act means the Medicare Australia Act 1973

PS Act means the Public Service Act 1999



HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010

NOTES ON CLAUSES

Clause 1: Short Title

1                            Clause 1 is a formal provision specifying the short title of the Act.

Clause 2: Commencement

2                            Clause 2 specifies the commencement of the provisions of the Bill. 

·            Clauses 1 to 3 and anything in the Bill not elsewhere covered by the table in clause 2 commence on the day the Bill receives the Royal Assent;

·            Schedules 1 to 3 and Schedule 4, Part 1 commence on 1 July 2011;

·            Schedule 4, Part 2, Division 1 commences on 1 July 2011.  However, if Schedule 1 to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 commences before 1 July 2011, the provision(s) do not commence at all because the Tax Laws Amendment Act repeals the provisions which Schedule 4, Part 2, Division 1 would otherwise amend. 

·            Schedule 4, Part 2, Division 2 commences on whichever is the later of:

(a)     immediately after the commencement of Schedules 1 to 3; and

(b)     the start of the day that Schedule 1 to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 commences.

However, the provision(s) do not commence at all if Schedule 1 to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 does not commence because Schedule 4, Part 2, Division 2's only operation is to amend a provision being inserted by the Tax Laws Amendment Act.

·            Schedule 4, Part 3 commences on whichever is the later of:

(a)     immediately after the commencement of Schedules 1 to 3; and

(b)     the start of the day that Schedule 1 to the Health Insurance Amendment (Compliance) Act 2010 commences.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur because Schedule 4, Part 3's only operation is to amend provisions to be brought in by Schedule 1 of the Health Insurance Amendment (Compliance) act 2010.

·            Schedule 4, Part 4 commences immediately after the commencement of Schedule 5 to the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2010 commences.  However, the provision(s) do not commence at all if the commencement of Schedule 5 to the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2010 does not occur because Schedule 4, Part 4's only operation is to amend a provision to be brought in by National Health Amendment (Pharmaceutical Benefits Scheme) Act.

·            Schedule 5 commences 1 July 2011.

3                            Subitem (2) providing for editing of Column 3 information in published versions of the Act is a formal provision which allows for information about Royal Assent to be added to the published version of the Act.

Clause 3: Schedules

4                            This provision provides for amendments and repeal of the Acts as set out in items in the Schedules. 

5                            This provision also provides for other items in the Schedules to have effect according to their terms.



Schedule 1 - Amendment of the Medicare Australia Act 1973

Part 1 - Amendments

Medicare Australia Act 1973

Item 1  Title

6                            This is a formal provision changing the title of the Act.

Item 2  Section 1

7                            This is a formal provision changing the short title of the Act.

Item 3  Section 3 (definition of authorised officer )

8                            The defined term "authorised officer" is used in the Part IID provisions dealing with investigative powers.

9                            This item amends this definition so that it refers to the new position of "Chief Executive Medicare" created by this Bill instead of referring to "Chief Executive Officer" which is an office being abolished by this Bill.

10                        This item also amends this definition so that it refers to "Departmental employee" instead of "employee".  This amendment is related to the integration into the Department of the previous "staff of Medicare Australia" referred to in section 20 of the MA Act.  Section 20 is being repealed by this Bill. 

Item 4  Section 3

11                        This item inserts a definition of "Chief Executive Centrelink" by reference to the Human Services (Centrelink) Act 1997 which will be the name of the Commonwealth Services Delivery Agency Act 1997 as amended and renamed by this Bill.

Item 5  Section 3

12                        This item inserts a definition of "Chief Executive Medicare" which refers to the new section 4 being inserted in the MA Act by this Bill.

Item 6  Section 3 (definition of Chief Executive Officer )

13                        This item repeals this definition because this Bill abolishes this position.  The term will no longer be used in the Act.

Item 7  Section 3 (definition of Commonwealth authority )

14                        This item repeals this definition because the term will no longer be used in the Act.

Item 8  Section 3 (definition of Commonwealth service )

15                        This item repeals this definition because the term will no longer be used in the Act.

Item 9  Section 3

16                        This item inserts a definition of "data".  This term is used in provisions being inserted in the investigative powers in Part IID of the MA Act. 

17                        This definition is in the same terms as the definition of "data" in the Crimes Act.

Item 10  Section 3

18                        This item inserts a definition of "data held in a computer".  This term is used in provisions being inserted in the investigative powers in Part IID of the MA Act. 

19                        This definition is in the same terms as the definition of "data held in a computer" in the Crimes Act.

Item 11  Section 3

20                        This item inserts a definition of "data storage device".  This term is used in the definition of "data held in a computer" and in provisions being inserted in the investigative powers in Part IID of the MA Act. 

21                        This definition is in the same terms as the definition of "data storage device" in the Crimes Act.

Item 12  Section 3

22                        This item defines the term "Departmental employee" which is used in:

·            amended provisions dealing with delegations by the Chief Executive Medicare;

·            new provisions dealing with assistance to the Chief Executive Medicare in the performance of functions of the Chief Executive Medicare;

·            new and amended provisions in Part IID dealing with investigative powers;  and

·            amendments of other legislation introduced by this Bills 

23                        Those amendments and new provisions and this definition provide the basis for all employees of the integrated Department to be able to support the Chief Executive Medicare in carrying out his or her functions.

Item 13  Section 3  (definition of employee )

24                        This item repeals this definition because this definition of "employee" in relation to the staff of "Medicare Australia" will not be relevant after the abolition of Medicare Australia as a separate agency. 

Item 14  Section 3

25                        This item defines the word "function" to include "power".

26                        This amendment and other amendments in the Bill are intended to avoid doubt about whether the conferral of functions under the MA Act to exercise a statutory power is effective to enable exercise of the statutory power without separate delegation by the holder of the statutory power.

27                        This issue was referred to in the ANAO Audit Report No 39 2009-2010 "Medicare Australia's Administration of the Pharmaceutical Benefits Scheme" at paras 2.54-2.65. 

Item 15  Section 3  (definition of medicare function )

28                        This item amends the definition of "medicare function" by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Medicare".

29                        This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 16  Section 3

30                        This item inserts a definition of the term "medicare program" by reference to section 41G which is being inserted by this Bill.  The term "medicare program" as defined here is used in Schedule 2 and Schedule 4 amendments to other Acts in provisions dealing with matters including protected information and designation of parties to Court and Tribunal proceedings.

Item 17  Section 3  (definition of officer assisting )

31                        This item amends the definition of "officer assisting" by replacing references to "an employee" with references to "a Departmental employee".

32                        These changes are consequential on repeal of the definition of "employee" and the insertion of the definition of "Departmental employee". 

33                        These changes are consistent with the integration of Medicare Australia staff into the Department and with the objective that all of the employees of the integrated Department should be available to assist in the carrying out of the Chief Executive Medicare's functions.

Item 18  Section 3

34                        This item repeals the definition of this term "perform" to include "exercise". 

35                        This change is consequential on the change to the definition of "function" to include "power".

Item 19  Section 3  (definition of principal officer )

36                        This item repeals this definition because the term will no longer be used in the Act.

Item 20  Section 3

37                        This item inserts a definition of the term "Secretary".

Item 21  Section 3  (definition of service arrangements )

38                        This item repeals this definition because the term will no longer be used in the Act.

Item 22  Section 3  (definition of service delivery functions )

39                        This item amends the definition of "medicare function" by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Medicare".

40                        This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 23  Section 3B 

41                        This item repeals this section because it is redundant because Chapter 2 of the Criminal Code now applies to all Commonwealth offences. 

Item 24  Part II 

42                        This item repeals Part II which had established Medicare Australia comprising the Chief Executive Officer and the "employees". 

43                        The repeal of Part II causes Medicare Australia to cease to exist as a separate entity.  The repeal of Part II is required for the integration of Medicare Australia into the Department.

Item 25  Part IIA (heading)

44                        This item repeals the heading and substitutes a heading which refers to "Chief Executive Medicare". 

45                        This change is consistent with the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 26  Division 1 of Part IIA (heading)

46                        This item repeals the heading because Part IIA will no longer be divided into Division 1 and Division 2.

47                        This change is consequential on the repeal of Division 2.

Item 27  Before section 5

48                        This item inserts section 4 which establishes a statutory office of Chief Executive Medicare. 

49                        Under subsection 4(2) the Chief Executive Medicare is to be an SES employee in the Department who is specified in a written instrument made by the Secretary. 

50                        Subsection 4(3) provides that an SES employee must not be specified in an instrument under subsection 4(2) if the person is, or is acting as, either the Chief Executive Centrelink or the Child Support Registrar. 

51                        The intention of subsection 4(3) is to prevent one person holding more than one of the positions of Chief Executive Medicare, Chief Executive Centrelink and Child Support Registrar at the same time. 

52                        The Secretary will not be eligible to be appointed as Chief Executive Medicare because the Secretary is not an APS employee and therefore is not an SES employee within the meaning of section 34 of the PS Act. 

53                        Subsection (4) states that an instrument under subsection (2) is not a legislative instrument.  The instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers. 

54                        This item also inserts section 4A providing for the Secretary to appoint an SES employee in the Department to act as the Chief Executive Medicare during a vacancy in the position of Chief Executive Medicare or during any period or during all periods when the Chief Executive is absent from duty or from Australia or is, for any reason, unable to perform the duties of the position.  Subsection 4A(2) provides that a person who is, or is acting as, either the Chief Executive Centrelink or the Child Support Registrar, may not be appointed to act as Chief Executive Medicare.  Maintaining this separation of the persons carrying out the functions of these different positions is consistent with subsection 4(3). 

55                        The Secretary will not be eligible to be appointed to act as Chief Executive Medicare because the Secretary is not an APS employee and therefore is not an SES employee within the meaning of section 34 of the PS Act. 

56                        Subsection 4A(3) provides that anything done by or in relation to a person purporting to act under an appointment under subsection (1) is not invalid merely because there was a defect or irregularity in connection with the appointment or the appointment had ceased to have effect or the occasion had not arisen or had ceased.  This provision is intended, as far as possible, to prevent technical defects in relation to the appointment of a person to act in the position of Chief Executive Medicare from affecting the validity of things done by or in relation to such a person. 

Item 28  Subsection 5(1)

57                        This item amends this provision by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Medicare".

58                        This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 28A Paragraph 5(1)(c)

59                        This item amends this provision by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Medicare".

60                        This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 28B Paragraph 5(1)(d)

61                        This item repeals paragraph 5(1)(d). Under paragraph 5(1)(d) the Minister could give the Chief Executive Officer additional functions by issuing a direction in writing. This power is no longer required because the Chief Executive Medicare’s service delivery functions have been broadened (refer to paragraphs 72 to 80 of this explanatory memorandum).

62                        The power to confer additional functions on the Chief Executive by regulations in paragraph 5(1)(e) will be retained, to ensure appropriate flexibility for the delivery of new programs and initiatives.

Item 28C Subsection 5(2)

63                        This item repeals subsection 5(2). This repeal is consequential on the repeal of the power of the Minister to confer functions on the Chief Executive under paragraph 5(1)(d).

Item 29  At the end of section 5

64                        This item adds detailed provisions in subsections (3) to (15) to avoid doubt about the effect of subsections (1) and (2) of section 5 in relation to issues referred to in the ANAO Audit Report No 39 2009-2010 "Medicare Australia's Administration of the Pharmaceutical Benefits Scheme" at paras 2.54-2.65.

65                        The delivery of services through Human Service portfolio agencies has already involved the separation of the policy responsibility for an Act - as determined by the allocation of administrative responsibility for an Act through the Administrative Arrangements Orders - from the day to day carrying out of particular functions and the exercise of particular statutory powers to deliver services and to carry out associated regulatory decision making.

66                        The intent of subsections (3) to (15) is to confirm that there is to be flexibility in the structures and arrangements which Government may adopt for delivery of services and for the exercise of associated regulatory powers.  Similar provisions are being introduced into the Human Services (Centrelink) Act 1997 as amended by this Bill.

67                        The options for service delivery and the exercise of associated regulatory powers are to continue to include the possibility of regulations conferring the capacity to exercise statutory powers and to carry out particular functions in the place of a primary holder of the power or function without needing to distinguish powers from functions and even if the primary holder of that power or function is in another portfolio. 

68                        The intent of subsections (3) to (15) is to put beyond doubt that such regulations give the Chief Executive Medicare the capacity to act in the place of the primary holder of that power.  When carrying out such functions and exercising such powers, the Chief Executive Medicare is not a delegate of the primary holder of the function or power and is not an agent subject to direction by the primary holder of the power. 

69                        Accountability for the carrying out of such functions and for the exercise of such powers when conferred on the Chief Executive Medicare is through the Human Services Department.  Accountability for the policy of the legislation is through the policy Department with AAO responsibility for the Act.

Items 30 and 31 Section 6

70                        These items amend section 6 by replacing the reference to "Chief Executive Officer's" and "Chief Executive Officer" with references to "Chief Executive Medicare's" and "Chief Executive Medicare.

71                        These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 32  Section 7

72                        This item repeals section 7 and inserts a new section 7 describing the Chief Executive Medicare's "service delivery functions".  

73                        The "service delivery function" under the old section 7 was based on a purchaser/provider approach to service delivery. 

74                        There had been a widening of the Chief Executive Officer's functions through Ministerial Directions including the Medicare Australia (Functions of Chief Executive Officer) Direction 2005, the Medicare Australia (Functions of Chief Executive Officer - Call Centre Services) Direction 2009 and the Medicare Australia (Functions of Chief Executive Officer - Commonwealth Services and Enabling Services) Direction 2010 .  This had resulted in a complex patchwork of bases for service delivery.

75                        The new section will provide a clear basis in the Act for the Chief Executive Medicare with the support of the Department to have the flexibility to continue some existing functions and to take on new areas of delivery of services, benefits, programs and facilities. 

76                        The conferral of this broad function will not impose on the Chief Executive Medicare a duty to carry out any or all activities which come within the definition. 

77                        The new section no longer makes the "service delivery function" depend on there being in place a service arrangement entered into between the Chief Executive Officer and the principal officer of a Commonwealth authority. 

78                        The new section brings within the Chief Executive Medicare's service delivery function the provision of services, benefits, programs and facilities on behalf of persons other than the Commonwealth.  The new section 7's definition of "service delivery function" provides a clear basis in the Act for the Chief Executive Medicare to coordinate service provision with any person or body including State Government agencies and Non-government organisations. 

79                        This aspect of the function will be particularly important in times of response to natural emergencies but is not limited to emergency situations.

80                        For constitutional reasons the service delivery function is limited to providing services etc "for a purpose for which the Parliament has power to make laws".  

Item 33  Section 7A

81                        This item repeals the existing section 7A and substitutes a new section 7A. The new section 7A recognises that the Secretary may enter into a written agreement with the Secretary of another Department about the exercise or performance of the Chief Executive Medicare's functions.  The continued use of agreements will ensure that governance arrangements are documented that reflect the respective roles of the department responsible for the policy and outcomes of a program and the department responsible for the delivery of the program.

82                        It is the responsibility of the Secretary of Human Services (rather than the Chief Executive Medicare) to enter into agreements under section 7A because the Secretary has overall management responsibility for the Department of Human Services’ operations.

Item 34  Sections 8, 8AA and 8AB

83                        This item repeals sections 8, 8AA and 8AB. 

84                        Section 8 gave the Minister power to give directions to the Chief Executive Officer about the exercise or performance of the Chief Executive Officer's powers or functions and provided for the reporting of such directions.  With the abolition of the office of Chief Executive Officer and the creation of a new office of Chief Executive Medicare within the Department, there is no need for the Minister to be given an express power to direct the Chief Executive Medicare.  The Chief Executive Medicare will be accountable through the Secretary to the Minister for the carrying out of his or her functions.  To that extent the Chief Executive Medicare will be subject to some Ministerial direction as an employee of the Department. 

85                        In accordance with ordinary principles of administrative law, to the extent that the functions of the Chief Executive Medicare involve the exercise of statutory powers which require the exercise of independent discretion, the Chief Executive Medicare will not be subject to direction from the Minister or anyone else about the exercise of that discretion.

86                        Section 8AA gave the Minister power to request from the Chief Executive Officer information about the exercise or performance of the Chief Executive Officer's powers or functions.  This provision is repealed because following the amendments brought in by this Bill, the Chief Executive Medicare will be an SES officer within the Department.  As such the Chief Executive Medicare will be accountable through the Secretary to the Minister and there will be no need for an express power for the Minister to request information.

87                        Paragraph (1)(b) of section 8AA gives the Minister power to request from the Chief Executive Officer information about the operation of Medicare Australia. 

88                        This provision is repealed because it is redundant on the abolition of Medicare Australia.

89                        This item also repeals section 8AB which relates to management of Medicare Australia. 

90                        This provision is repealed because it is redundant on the abolition of Medicare Australia.

Item 35  Subsection 8AC(1)

91                        This item amends subsection 8AC(1) which authorises delegation by the Chief Executive Officer of powers or functions to employees. 

92                        This item replaces references to "Chief Executive Officer" with references to "Chief Executive Medicare".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

93                        This item also replaces the reference in this subsection to "an employee" with a reference to "a Departmental employee".  This change is consequential on repeal of the definition of "employee" and the insertion of a definition of "Departmental employee".

94                        Departmental employees who have been delegated functions by the Chief Executive Medicare may also be delegated functions by the Chief Executive Centrelink and the Child Support Registrar. 

95                        These changes are consistent with the integration of Medicare Australia staff into the Department and with the objective that there should not be any barrier to any of the employees of the integrated Department assisting in carrying out the functions of the Chief Executive Medicare.

96                        This item also removes this subsection's reference to delegation of "powers".  This reference will not be necessary following this Bill's amendment of the definition of "function" to include power.

97                        The power to delegate continues to be not limited to SES employees because of the very wide range of functions (including powers) that come within the functions of the Chief Executive Medicare and because of the large volume of exercises of powers and functions that are carried out on a daily basis.

Item 36  After subsection 8AC(1)

98                        This item inserts a new subsection 8AC(1A).  The new subsection confirms that the power to delegate in subsection 8AC(1) can be exercised in relation to functions of the kind referred to in subsection 5(3) or (10). 

99                        This new subsection is intended to avoid doubt about whether functions of the kind referred to in new subsection 5(3) and (10) can be delegated by the Chief Executive Medicare. 

100                    This issue was referred to in the ANAO Audit Report No 39 2009-2010 "Medicare Australia's Administration of the Pharmaceutical Benefits Scheme" at para 2.62.

Items 37, 38, 39 and 40  Subsections 8AC(2), 8AC(3) and 8AC(4)

101                    These items replace the subsection 8AC(2), 8AC(3) and 8AC(4) references to "Chief Executive Officer" with references to "Chief Executive Medicare".  These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

102                    These items also remove these subsections' reference to powers.  These references will not be necessary following this Bill's amendment of the definition of "function" to include power.

103                    The power of delegation in section 8AC has not been and will not be limited to delegation to SES employees because of the large volume of decisions and actions that need to be taken to deliver services.

Item 41  At the end of section 8AC

104                    This item adds a subsection (5) which provides that the Chief Executive Medicare must not delegate functions under subsection (1) or (3) to a Departmental employee who is the Chief Executive Centrelink or the Child Support Registrar.  This is consistent with the restrictions in sections 4 and 4A on who can be appointed to be the Chief Executive Medicare and on who can be appointed to act as Chief Executive Medicare. 

105                    The Chief Executive Medicare will not be able to delegate functions to the Secretary of the Department because under the terms of subsection 8AC(1) as amended by this Bill, delegations can only be made to a "Departmental employee".  The Secretary is not a Departmental employee.

Item 42  Subsection 8AD(1)

106                    This item deletes this subsection's reference to "powers".  This reference will not be necessary following this Bill's amendment of the definition of "function" to include power.

Items 43 and 44 - Subsection 8AD(1) and note

107                    These items replace the references in subsection 8AD(1) and the note to this subsection to "Chief Executive Officer" with references to "Chief Executive Medicare".  These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 45  Subsection 8AD(2)

108                    This item deletes this subsection's reference to "power".  This reference will not be necessary following this Bill's amendment of the definition of "function" to include power.

Item 46  Paragraph 8AD(2)(a)

109                    This item replaces the reference in this paragraph to "Chief Executive Officer" with a reference to "Chief Executive Medicare".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 47  Subsection 8AD(3)

110                    This item replaces the reference in this subsection to "Chief Executive Officer" with a reference to "Chief Executive Medicare".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

111                    This item also deletes this subsection's reference to exercise of a power.  These references will not be necessary following this Bill's amendment of the definition of "function" to include power and amendment of the definition of "perform" to include exercise.

Items 48, 49, 50, 51 and 52  Subsections 8AE1, 8AE(1) (note), Paragraphs 8AE(2)(b), 8AE(5)(b) and Section 8AF 

112                    These items amend subsection 8AE(1), subsection 8AE(1) (note), paragraphs 8AE(2)(b) and 8AE(5)(b) and section 8AF by replacing references in these provisions to "Chief Executive Officer" with references to "Chief Executive Medicare". 

113                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 53  Paragraph 8AF(a)

114                    This item replaces the reference in this paragraph to "Chief Executive Officer" with a reference to "Chief Executive Medicare".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

115                    This item also deletes this subsection's reference to "power".  This reference will not be necessary following this Bill's amendment of the definition of "function" to include power.

Item 54  Paragraph 8AF(b)

116                    This item replaces the reference in this paragraph to "Chief Executive Officer" with a reference to "Chief Executive Medicare".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

117                    This item also deletes this paragraph's reference to "exercise" of a "power".  This reference will not be necessary following this Bill's amendment of the definition of "function" to include power and amendment of the definition of "perform" to include exercise.

Item 55  After section 8AF

118                    This item inserts a new section providing that a Departmental employee may assist the Chief Executive Medicare in the performance of any of the functions of the Chief Executive Medicare. 

119                    This change supports the integration of portfolio service delivery and implements the objective that all of the employees of the integrated Department should be available to assist in the carrying out of the Chief Executive Medicare's functions.

Item 56  Division 2 of Part IIA

120                    This item abolishes Division 2 of Part IIA which established the office of Chief Executive of Medicare Australia and provided for the incidents of that office.

121                    The abolition of this statutory office and the creation of a new position Chief Executive Medicare in the Department in accordance with the new section 4 inserted by this Bill is a central aspect of the integration of service delivery.

Items 57 and 58  Part IID (heading) and Subsection 8L(1)

122                    These items replace references to "Chief Executive Officer" with references to "Chief Executive Medicare".  These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 59  Section 8M

123                    This item amends this section dealing with appointment of officers for the exercise of investigative powers. 

124                    This item replaces the reference to "Chief Executive Officer" with a reference to "Chief Executive Medicare".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

125                    This item also replaces the reference in this section to "an employee" with a reference to "a Departmental employee".  This change is consequential on repeal of the definition of "employee" and the insertion of a definition of "Departmental employee". 

126                    These changes are consistent with the integration of Medicare Australia staff into the Department and with the objective that there should not be any barrier to any of the employees of the integrated Department assisting in carrying out the functions of the Chief Executive Medicare and related tasks.

Items 60, 61 and 62 - Subsections 8N(1), (2) and (3), 8P(1) and Paragraph 8Q(1)(b)

127                    These items replace references to "Chief Executive Officer" with references to "Chief Executive Medicare".  These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Items 63, 64 and 65 - Paragraph 8Q(1)(c) and Subsections 8Q(3) and 8Q(4)

128                    These items replace references to "employee" with references to "Departmental employee".  These changes are consequential on repeal of the definition of "employee" and the insertion of a definition of "Departmental employee".

Item 66  After section 8R

129                    This item inserts a new section, section 8RA which deals with the use of:

·            information given in response to a notice issued under section 8P; or

·            information contained in a document that is given in response to a notice issued under section 8P.

130                    Section 8RA expressly authorises the use or disclosure of such information (section 8P information) in connection with the exercise of powers under sections 124F and 124FF of the Health Insurance Act 1974 (HIA) and section 133 of the National Health Act 1953 (NHA).

131                    Section 124F of the HIA confers on Medicare Participation Review Committees the power to make a determination about the action that should be taken in relation to a practitioner who has been convicted of any one or more of the relevant offences (as defined in the HIA) or who have been found to have committed a relevant civil contravention (as defined in the HIA).  The actions which may be taken include no action, counselling, reprimand and part or full disqualification of the practitioner from medicare participation. 

132                    Section 124FF of the HIA confers on Medicare Participation Review Committees the power to make a determination about whether a person caused or permitted a relevant offence or civil contravention to be engaged in by another person and to make determinations in respect of a person who has caused or permitted that offence or contravention by the other person.  The action that may be taken include no action, counselling, reprimand and part or full disqualification of the person and of practitioners employed by the person from medicare participation.

133                    Section 133 of the NHA applies when a medical practitioner is charged with one of the specified offences which is connected with the supply of pharmaceutical benefits or special pharmaceutical products under the NHA.  Section 133 confers on the Secretary of the Department of Health and Ageing power to suspend approvals and authorities held by the person under the NHA in relation to pharmaceutical benefits.

134                    The use and disclosure of section 8P information in connection with the decision-making processes under sections 124F and 124FF of the HIA and section 133 of the NHA allows relevant information to be taken into account in the exercise of these administrative powers. This supports the better protection of the integrity of medicare benefits and pharmaceutical benefits scheme.

135                    The intent of the new section 8RA is to remove any doubt which the High Court decision in Johns v ASC (1993) 178 CLR 408 might suggest about whether information obtained under section 8P may be used for purposes other than the purpose for which the information gathering power was originally exercised. 

136                    Section 8RA will not affect section 8S's restrictions on the use of section 8P information in criminal proceedings.

Items 67 and 68  Subsection 8U(6) and Paragraph 8Y(2)(b)

137                    These items amend subsection 8U(6) and paragraph 8Y(2)(b) by replacing references to "Chief Executive Officer" with references to "Chief Executive Medicare".  These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 69  Sections 8ZF and 8ZG

138                    This item updates investigatory, search and seizure powers in the MA Act by aligning the powers in the MA Act with those set out in the Crimes Act 1914 .

139                    Sections 8ZF and 8ZG of the MA Act were modelled on earlier versions of sections 3K and 3L of the Crimes Act.  Amendments made to sections 3K and 3L of the Crimes Act over the last decade have not been mirrored in the MA Act.  

Sections 8ZF

140                    Section 8ZF is modelled on an earlier version of section 3K of the Crimes Act.

141                    The Cybercrime Act 2001 amended section 3K of the Crimes Act to provide more certainty about the circumstances when a thing found at warrant premises could be moved to another place for examination or processing with a view to determining if the thing could be seized under a warrant. 

142                    Section 3K was further amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 .  The period of time for which a thing could be moved to another location for examination and processing (initially 72 hours) was extended to 7 days.  There were other minor amendments to section 3K made by that Act.

143                    The new section 8ZF will provide greater flexibility and certainty about the circumstances in which a thing may be examined or processed at another location in order to determine whether it can be seized under a warrant. 

144                    Subsection 8ZF(1) permits an authorised officer, or an officer assisting, to bring with them whatever equipment is necessary to examine or process a thing found at warrant premises in order to form a view about whether that thing may be seized under a warrant.

145                    Subsection 8ZF(2) makes clear that a thing may be moved to another location for examination or processing.  This will be permitted where:

·            It is significantly more practical to examine or process the thing at another location (having regard to the timeliness, cost and availability of expert assistance) and there are reasonable grounds for believing that the thing contains evidential material; or

·            The occupier of the warrant premises consents to the thing being moved.

146                    If a thing is moved from warrant premises to another location for examination or processing, subsection 8ZF(3) requires the occupier of the premises to be informed of the location where the examination and processing is to be conducted.  The requirement to notify the occupier is, however, subject to a qualification, namely, that notification is practical in the circumstances.  The occupier is permitted to be present during the examination or processing at the other location.

147                    Subsection 8ZF(4) creates an exception to the notification requirement in subsection (3).  Notifying the occupier of the location where the examination or processing is to be conducted, or permitting the occupier to be present while that occurs will not be required if there are reasonable grounds for believing that doing so might:

·            Compromise the safety of a person; or

·            Prejudice an investigation or prosecution.

148                    Subsection 8ZF(5) permits a thing to be moved to another location for examination or processing for a maximum of 14 days.  If the thing cannot be examined or processed within that time, subsection 8ZF(6) permits an authorised officer to apply to a magistrate for an extension of time. 

149                    An occupier must be notified of an application for an extension and has the right to be heard under subsection 8ZF(7) about whether the extension ought to be granted.

150                    There is no limitation of the number of extensions that may be sought and granted, however, the operation of subsection 8ZF(8) means that a single extension cannot exceed 7 days. 

151                    Subsection 8ZF(9) clarifies when equipment already at warrant premises may be utilised to carry out the examination or processing of a thing in order to determine whether that thing may be seized under a warrant. 

Sections 8ZG

152                    Section 8ZG is modelled on an earlier version of section 3L of the Crimes Act.

153                    The Cybercrime Act amended section 3L to clarify the circumstances in which electronic equipment could be used at warrant premises to access data suspected to constitute evidential material.  It also clarified the circumstances in which electronic equipment could be used to copy evidential material to a device, disk or tape that had been brought to the premises.  The circumstances in which data copied and taken from warrant premises is to be destroyed was later clarified by amendments to section 3L made by the Crimes Legislation Amendments Act. 

154                    Section 8ZG of the MA Act is to be likewise clarified and strengthened by being aligned with section 3L of the Crimes Act.

155                    Subsection 8ZG(1) permits electronic equipment at warrant premises to be operated for the purposes of accessing data that is suspected to be evidential material.  The data need not be actually held at the premises, but can be accessible through the use of electronic equipment at the premises.

156                    Subsection 8ZG(2) provides greater certainty about the circumstances in which data accessed with the assistance of electronic equipment may be copied.  Data reasonably suspected to constitute evidential material may be copied to a disk, tape or device brought to the premises by the authorised officer or officer assisting.  The data may be copied with or without the written consent of the occupier of the premises.  The disk, tape or device containing a copy of the evidential material may then be taken from the premises.

157                    If the reason for copying the data no longer exists, or there has been a decision not to use the data in evidence, section 8ZG(3) requires that the information (and any reproduction) be removed from a device in the control of a Departmental employee and that the data be destroyed.

158                    If there are facilities at warrant premises that can be used to put evidential material into documentary form, paragraph 8ZG(4)(b) authorises the use of those facilities to convert the material into documentary form and seizure of the documents so produced. 

159                    The circumstances in which equipment may be seized in accordance with paragraph 8ZG(4)(a) is limited by the operation of subsection 8ZG(5).  Equipment, disks, tapes or other associated devices may be seized only if:

·            It is not practicable to copy the data in the circumstances contemplated by subsection 8ZG(2);

·            It is not practicable to put the material into documentary form in the manner contemplated by paragraph 8ZG(4)(b); or

·            The occupier's possession of the equipment could constitute an offence.

160                    Subsection 8ZG(6) authorises the securing of equipment at warrant premises in order to protect what is suspected to be evidential material from destruction, alteration or interference.  The occupier of the premises must be given notice, under subsection 8ZG(7), of the intention to secure the equipment.  Subsection 8ZG(8) establishes a maximum period of time during which equipment may be secured.  That period is 24 hours, or until such time as the equipment has been operated by an expert, whichever happens first.

161                    The 24 hour period referred to in subsection 8ZG(8) may be extended in circumstances where expert assistance will not be available within that 24 hour period.  An application for an extension is to be made to a magistrate under subsection 8ZG(9).  The occupier of the premises must be informed, under subsection 8ZG(10), of the intention to seek an extension of the 24 hour period during which equipment may be secured.  The occupier has a right to be heard in respect of that application.

162                    Subsection 8ZG(11) operates to make the issuing of an extension for the securing of equipment subject to the same considerations that are applicable to the issuing of a warrant under Division 4.

Sections 8ZGA, 8ZGB and 8ZGC

163                    Sections 8ZGA, 8ZGB and 8ZGC of the MA Act are modelled on sections 3LAA, 3LA and 3LB of the Crimes Act. 

164                    Sections 3LA and 3LB were inserted into the Crimes Act by the Cybercrime Act.  The Crimes Legislation Amendment Act inserted section 3LAA into the Crimes Act and amended sections 3LA and 3LB.  

165                    The intention is that the investigatory, search and seizure provisions in the MA Act be aligned with the Crimes Act provisions.  To achieve that alignment, sections 3LAA, 3LA and 3LB of the Crimes Act are to be mirrored in the MA Act.

166                    Section 8ZGA concerns the use of electronic equipment at a place other than warrant premises.

167                    To avoid any doubt about when data may be accessed, subsection 8ZGA(1) confirms that an authorised officer or officer assisting may operate equipment for the purposes of accessing data if the equipment found at warrant premises has been moved to another location.

168                    If data accessed using the electronic equipment is reasonably suspected to constitute evidential material, subsection 8ZGA(2) authorises the copying of that data to a disk, tape or other device.

169                    If the reason for copying the data no longer exists, or there has been a decision not to use the data in evidence, section 8ZGA(3) requires that the information (and any reproduction) be removed from a device in the control of a Departmental employee and that the data be destroyed.  This is consistent with the requirement imposed by new section 8ZG(3).

170                    If, after using the equipment, evidential material has been accessed and can be put into documentary form, paragraph 8ZGA(4)(b) authorises the conversion of the material into documentary form and seizure of the so documents produced. 

171                    The circumstances in which equipment and any disk, tape or device may be seized in reliance of paragraph 8ZGA(4)(a) is limited by the operation of subsection 8ZGA(5).  Equipment, disks, tapes or other devices may be seized only if:

·            It is not practicable to copy the data in the circumstances contemplated by subsection 8ZGA(2);

·            It is not practicable to put the material into documentary form in the manner contemplated by paragraph 8ZGA(4)(b); or

·            The occupier's possession of the equipment could constitute an offence.

172                    Section 8ZGB concerns the circumstances in which a person can be required to provide assistance to an authorised officer or officer assisting to access, copy or convert data that is either held in, or accessible from:

·            A computer or a data storage device at warrant premises;

·            A computer or data storage device that has been moved from warrant premises for examination or processing; or

·            A computer or data storage device that has been seized.

173                    An authorised officer may make an application to a magistrate under subsection 8ZGB(1) for an order requiring a specified person to provide information or assistance to enable:

·            Data to be accessed;

·            Data to be copied to a data storage device; or

·            Data to be converted into documentary form or some other intelligible form.

174                    A magistrate must be satisfied of the matters referred to in subsection 8ZGB(2) before granting such an order.  There must be reasonable grounds for suspecting that evidential material is held on, or is accessible from, the computer or data storage device.  In addition, the person named in the order must have relevant knowledge about the computer, device or network to which the computer was connected or knowledge about applicable data protection measures.

175                    Where an order requiring a person to provide assistance is made prior to the seizure of a computer or data storage device, the order will cease to have effect, by virtue of subsection 8ZGB(3), once the computer or device has been seized.  It is open to an authorised officer to make a fresh application for an assistance order with respect to the computer or storage device under subsection (1).

176                    Subsection 8ZGB(4) requires certain things to be specified in an order requiring a person to give assistance where the order relates to a computer or data storage device that is not located on warrant premises.  For instance, the period within which the person is to provide the information or assistance and the place at which it is to be provided must be expressly dealt with in the notice.

177                    Paragraph 8ZGB(4)(c) enables a magistrate to make an order requiring a person to provide information or assistance subject to certain conditions.

178                    Failure to comply with an assistance order is an offence under subsection 8ZGB(5).  The offence is punishable by imprisonment for 2 years.

179                    Section 8ZGC outlines the notification requirements that are applicable where data held on premises other than warrant premises has been accessed in the course of executing a warrant.

180                    Subsection 8ZGC(1) requires that an occupier of non-warrant premises be informed that data held on those non-warrant premises has been accessed under subsections 8ZG(1) or 8ZGA(1).  The notice is to be provided to the occupier of non-warrant premises as soon as practicable after the data has been accessed and is to include details about actual or anticipated arrangements for continued access to the data. 

181                    Subsection 8ZGC(1) contemplates there may be circumstances where it is not practicable to notify the occupier of the non-warrant premises that data held at those premises has been accessed. 

182                    Where notification is required, subsection 8ZGC(2) requires the notice to contain sufficient information to enable the occupier of the premises to contact the authorised person.

Item 70  Paragraph 8ZH(1)(a)

183                    Section 8ZH deals with payment of compensation to the owner of equipment which is damaged while the equipment is being used to examine or process things.  This item amends paragraph (a) of subsection (1) by adding a reference to operation of equipment in accordance with new section 8ZGA. 

184                    This item has the effect of extending the situations when compensation for equipment damage is provided for to include the operation of equipment in accordance with new section 8ZGA.

Item 71  Subsection 8ZL(2)

185                    Section 8ZL imposes obligations on an authorised officer or officer assisting, if requested by the occupier or representative of the occupier, to provide a copy of:

·            a document, film, computer file or other thing; or

·            information which is in a storage device;

which has been seized in exercise of search and seizure powers under Division 4 of the MA Act.

186                    Subsection (2) currently states that the obligation in subsection (1) to provide copies does not apply if the thing has been seized under paragraph 8ZG(2)(b) or (c).  Those provisions relate to situations where the authorised officer or officer assisting operates equipment at the warrant premises to produce documents and seizes the documents so produced (paragraph 8ZG(2)(b)) or transfers material to a disk, tape or other storage device which the officer takes away from the premises (paragraph 8ZG(2)(c)).  In those situations the information remains available to the occupier at the warrant premises and there is no need to provide copies to the occupier.

187                    This item replaces references to section 8ZG (which is repealed by this Bill) with references to new paragraphs 8ZG(4)(b) and 8ZGA(4)(b).  Those paragraphs relate to situations where equipment has been used at warrant premises to put data into a documentary form which is in turn seized under a warrant.  Because the data remains available to the occupier at the warrant premises, there is no need to provide copies of the documents seized.

Items 72 and 73  Subsections 8ZM(1) and 8ZM(2)

188                    These items amend subsections 8ZM(1) and 8ZM(2) by replacing references to "Chief Executive Officer" with references to "Chief Executive Medicare".  These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 74  Subsection 8ZN(1)

189                    This item repeals subsection 8ZN(1) and substitutes a new subsection 8ZN(1).  The current subsection 8ZN(1) requires (subject to some qualifications in subsection (2)) that the Chief Executive Officer provide written notification to a patient if Part IID investigatory powers have been used in respect of a record containing the patient's clinical details.

190                    Subsection 8ZN(2) currently provides two exceptions to the notification requirement set out in s 8ZN(1).  Those exceptions are:

·            Where notifying the patient that a record containing their clinical details has been examined or seized would prejudice an investigation; or

·            The patient cannot be located.

191                    Large numbers of patient records may be seized under a warrant, especially when the records are in an electronic form.  Only some of those records may ultimately be relevant to a Part IID investigation.  Currently, subsection  8ZN(1) requires all patients to be notified of the seizure of records, whether or not their record is actually examined as part of the investigatory process.

192                    It is onerous and expensive for Medicare Australia to notify patients on that broad scale.  In addition, unnecessarily broad notification could cause needless worry to patients whose records have not been examined. 

193                    Under the terms of the new subsection 8ZN(1), the notification obligation will only arise if, in the exercise of a power under this Part, an authorised officer or an officer assisting examines a record containing clinical details relating to an individual patient. 

194                    The notification obligation will be for the Chief Executive Medicare to advise the patient, in writing, of the examination of a record containing the patient's clinical details.

Item 75  Paragraph 8ZN(2)(b)

195                    This item amends this paragraph by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Medicare".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 76  At the end of subsection 8ZN(2)

196                    This item inserts a new paragraph which operates as a further exception to the notification obligation in subsection 8ZN(1). 

197                    The new exception is to apply in circumstances where a medical record has been examined, but the examination of the record did not result in the authorised officer, or the officer assisting, obtaining any knowledge of any of the clinical details relating to the patient.

Item 77  Section 8ZQ

198                    This item amends this section by replacing references to "Chief Executive Officer's" with references to "Chief Executive Medicare's".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 78  At the end of Division 6 of Part IID

199                    This item inserts a new section 8ZR relating to the power of magistrates. 

200                    Subsection (1) states that the powers conferred on magistrates by Part IID are conferred on the magistrates in a personal capacity and not as a court or members of a court.  Subsection (2) states that the magistrate need not accept the power conferred.

201                    The purpose of subsections (1) and (2) is to avoid any doubts about the constitutional validity of Part IID's conferral of powers on magistrates..

202                    Subsection (3) states that a magistrate exercising a power conferred by this Part has the same protection and immunity as if he or she were exercising the power:

·            As the court of which the magistrate is a member; or

·            As a member of the court of which the magistrate is a member.

Item 79  Part III

203                    This item repeals Part III which contains two sections, section 20 and section 21. 

204                    Section 20 declared Medicare Australia consisting of the Chief Executive Officer and the staff assisting the Chief Executive Officer to be a Statutory Agency for the purposes of the PS Act and designated the Chief Executive Officer as the head of that Statutory Agency.  The repeal of section 20 removes that Statutory Agency status.  This repeal of Part III is required for the integration of Medicare Australia into the Department.

205                    Section 21 authorised the Chief Executive Officer to engage consultants.  Section 21 is being repealed because the statutory office of Chief Executive Officer is being abolished and because the engagement of consultants through the Department is subject to general Commonwealth procedures and does not require express statutory authorisation. 

Item 80  Paragraph 41C(2)(c)

206                    This item amends this paragraph by changing the reference to implying a connection with the Chief Executive Officer or Medicare Australia to implying a connection with the Chief Executive Medicare or the Department. 

207                    The change from Chief Executive Officer to Chief Executive Medicare is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.  The change from Medicare Australia to the Department is consequential on the abolition of Medicare Australia.

Item 81  Section 41F

208                    This item amends this section by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Medicare".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 82  After section 41F

209                    This item inserts section 41G which provides a definition of the term "Medicare programs" "for the purposes of a law of the Commonwealth" as being:

        services, benefits, programs or facilities that are provided for under:

(a)     the Health Insurance Act 1973 ; or

(b)     the National Health Act 1953 ; or

(c)     the Dental Benefits Act 2008 ; or

(d)     the Aged Care Act 1997 ;

(e)     the Healthcare Identifiers Act 2010 ;

(f)     the Private Health Insurance Act 2007 ;

(g)     the Health and Other Services (Compensation) Act.1995 ;

or services, benefits, programs or facilities specified in the regulations.

210                    It is intended that other programs currently delivered by Medicare Australia not specified in the new section 41G will be specified in the regulations. When the Department of Human Services is given responsibility for delivering a new program, the program may be prescribed by regulations as a medicare program. If it is not prescribed, then it will become a centrelink program (see paragraphs 496 to 500 of this explanatory memorandum)

211                    ”Medicare programs” is used in this Bill's amendments of provisions of other Acts including provisions dealing with protected information and parties to Court and Tribunal proceedings.

Item 83  Subsection 42(1A)

212                    This item repeals this subsection which had required the Chief Executive Officer to provide an annual report to the Minister.

213                    This repeal is consequential on the abolition of Medicare Australia as a separate statutory authority and on the abolition of the office of Chief Executive Officer and the creation of a new office of Chief Executive Medicare in the Department.

Item 84  Subsection 42(1)

214                    This item amends this section by inserting the words "on the Department’s activities given by the Secretary under section 63 of the Public Service Act 1999 " after the reference to "annual report".  This change is consequential on the abolition of Medicare Australia as a separate statutory authority and is part of the integration of Medicare Australia into the Department.

Item 85  Subsection 42(2)

215                    This item inserts in this section the words "mentioned in subsection (1)" after "annual report".  This change is consequential on the amendment made by item 85.

Item 86  Subsection 42(3)

216                    This item repeals this subsection which required tabling of the Chief Executive Officer's annual report in Parliament. 

217                    There is no need to have a provision requiring the Minister to table the Department's annual report because, in accordance with the terms of section 63 of the PS Act, such reports are given to the Minister by the Secretary for presentation to Parliament.

Item 87  After section 42

218                    This item inserts a new section 43 expressly authorising the Governor-General to enter into arrangements with the Governor of a State, with the Chief Minister of the Australian Capital Territory and the Administrator of the Northern Territory in relation to the performance of the functions of a magistrate under this Act by a magistrate of the State or Territory.

219                    These provisions ensure that State and Territory magistrates only perform functions under the MA Act with the agreement of the Executive Governments of the respective State and Territory. 

220                    Subsection (7) of the new section 43 requires a copy of each instrument by which an arrangement under section 43 is made, varied or revoked to be published in the Gazette. 

221                    Subsection (8) states that such an instrument is not a legislative instrument.  The instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers. 

Multiple secrecy provisions

222                    This item also inserts a new section 43A dealing with multiple secrecy provisions.  The intent of section 43A is to clarify and simplify the circumstances in which the Secretary, Chief Executive Medicare or a Departmental employee may disclose, use or record information where the secrecy provisions of more than one Act apply in relation to specific information about a specific person, for example, a person’s address.  The provision makes clear that, if a person has provided the same specific personal information to the Department of Human Services for a number of different programs to which different secrecy provisions apply, the specific information can be dealt with in accordance with any of the applicable secrecy provisions.   Thus, for example, if a person provides the Department of Human Services with their address for the purposes of program “A” and program “B” and the secrecy provisions covering program “A” permit the disclosure of the person’s address in specific circumstances, the information can be disclosed in those circumstances even if the disclosure is not authorised  under the secrecy provisions covering program “B”.  This is intended to replicate, as far as possible, the current situation with the use and disclosure of information by the Department of Human Services, Medicare Australia and Centrelink.  For example, where, a person has provided their address to both Medicare Australia and Centrelink, in some specific situations it is possible that Medicare Australia may be able to disclose the address to another person, but Centrelink may be prevented by secrecy provisions from disclosing the same information.

223                    Section 43A applies to actions of the Chief Executive Centrelink or a Departmental employee of disclosure, use or the making of a record, of information.  Subsection (3) defines "disclose" to mean disclose, divulge or communicate.

224                    Subsection 43A(2) provides that if:

(a)     particular information (the "protected information") is subject to a regulatory regime under a "designated program Act" (the "first program Act"); and

(b)     the protected information is also subject to a regulatory regime under another designated program Act (the "second program Act"); and

(c)     particular action can be taken in relation to the protected information in particular circumstances without contravening the second program Act;

then the taking of the action (disclosure, use or making a record) in those circumstances is taken not to contravene the first program Act.  The section will only apply if the same specific information about a person is held by the Department of Human Services under two or more programs covered by different secrecy provisions.

225                    The "designated program Acts" are the Acts listed in subsection (3).  These Acts are Acts which have provisions dealing with aspects of disclosure, use or the making of a record of, information which affect services benefits, programs or facilities delivered by the Human Service portfolio agencies. 

226                    Additional Acts may become “designated program Acts” by being prescribed in regulations. This power to prescribe additional Acts is important to ensure that the multiple secrecy provision remains current when new functions which require access to, and use of, information that is protected by legislation, are conferred on the Department of Human Services.

Part 2—Transitional provisions

227                    The Items in Part 2 deal with transitional matters arising from the amendments in Part 1 including matters arising from the abolition of the statutory office of Chief Executive of Medicare Australia and from the abolition of Medicare Australia. 

228                    The provisions deal with matters internal to the Commonwealth in relation to financial accountability and transfer of employees from Medicare Australia to the Department.  The general approach of these provisions is to:

·            attribute things done by, or in relation to, the Chief Executive Officer as agency head to the Secretary;

·            give effect to documents referring to the Chief Executive Officer as agency head as if those references were references to the Secretary; and

·            give effect to documents referring to Medicare Australia as if those references were references to the Department.

229                    The transitional provisions also deal with the impact of the integration on persons and entities outside the Human Services portfolio.  These transitional provisions are intended to ensure that the integration of Medicare Australia into the Department does not disrupt the delivery of services and does not have any adverse impact on the rights of persons or entities who have existing relationships with, or who are part way through, applications or transactions involving the Chief Executive Officer or Medicare Australia.  The general approach of these transitional provisions is to:

·            attribute acts done by, or in relation to, the Chief Executive Officer to the Chief Executive Medicare;

·            attribute acts done by, or in relation to, Medicare Australia to the Department;

·            give effect to documents referring to the Chief Executive Officer as if those references were references to the Chief Executive Medicare; and

·            give effect to documents referring to Medicare Australia as if those references were references to the Department.

230                    The transitional provisions also give the Minister power to modify the operation of the general provisions by a declaration to:

·            prevent particular transitional provisions applying to particular acts or documents;

·            attribute acts to the Secretary or the Chief Executive Centrelink instead of to the Chief Executive Medicare; or

·            attribute acts to the Chief Executive Medicare or the Chief Executive Centrelink instead of to the Secretary.

231                    The purpose of giving the Minister the power to make these declarations is to:

·            allow the Minister power to modify the operation of the transitional provisions to deal with what otherwise could be anomalous or inappropriate outcomes; and

·            give the Minister flexibility to modify the operation of the transitional provisions to support and facilitate the integration of service delivery in the Department.

232                    Any modification of the general transitional provisions by Ministerial declaration must be done by legislative instrument and is, as such, subject to tabling and scrutiny.

233                    The transitional provisions also deal with proceedings pending in Courts and Tribunals where,

·            the Chief Executive is a party;

·            Medicare Australia is a party;

·            the Commonwealth is a party described as the Commonwealth represented by the Chief Executive Officer;

·            the Commonwealth is a party described as the Commonwealth represented by Medicare Australia. 

234                    These provisions are drafted so as not to impinge on the powers of the Courts and tribunals to make such orders as they consider appropriate in relation to substitution of parties and/or changes in description of parties. 

Division 1 - Introduction

Item 88  Definitions

235                    This Item inserts definitions that apply in Part 2.  The significance of each of these definitions is explained below in respect of the items in which the definition is first used. 

Division 2 - Acts of the CEO etc

Item 89  Transitional—acts of the CEO under financial management and public service legislation etc.

236                    Subitem 89 identifies particular acts done by or in relation to the "Chief Executive Officer" before the "transition time" to which item 89 applies.

237                    The term "transition time" is defined by item 88 as meaning "the commencement of this Schedule".  Under clause 2 of the Bill, this Schedule (Schedule 1) commences 1 July 2011.

238                    The term "Chief Executive Officer" is defined by item 88 as having the same meaning as the term "Chief Executive Officer" within the meaning of the MA Act as in force immediately before the transition time.

239                    The acts to which this item applies are acts done by the Chief Executive Officer under, and, acts done in relation to the Chief Executive Officer under or for the purposes of, any of:

        (a)   the Financial Management and Accountability Act 1997 (FMA Act); or

        (b)   regulations under the FMA Act (FMA Regs); or

        (c)   Finance Minister’s Orders under the FMA Act; or

        (d)  the Public Service Act 1999 (PS Act); or

        (e)   regulations under the PS Act (PS Act Regs).

240                    Under subitem 89(2) after the transition time, an act to which item 89 applies has effect:

            (a)   if done by the Chief Executive Officer before the transition time as if it had been done by the Secretary; and

            (b)   if done in relation to the Chief Executive Officer, as if it had been done in relation to the Secretary.

241                    Item 88 defines the term "the Secretary" as meaning the Secretary of the Department.

242                    Subitem 89 (3) provides that the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act. 

243                    Subitem 89(4) authorises the Minister when making a declaration under subitem (3) in relation to a specified act to make a declaration by legislative instrument:

            (a)   for an act done by the Chief Executive Officer before the transition, that the act has effect after the transition time as if it had been done by the Chief Executive Medicare; and

            (b)   for an act done in relation to the Chief Executive Officer before the transition time, that the act has effect after the transition time as if it had been in relation to the Chief Executive Medicare;

244                    Subitems (3) and (4) enable the Minister to make declarations to adjust the general effect of subitem 89(2) where appropriate to avoid anomalous or inappropriate outcomes.

245                    Subitem 89(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time. 

246                    Subitem 89(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 90  Transitional—acts of the CEO under binding non-employment agreements etc.

247                    This item deals with the acts done before the transition time by, or in relation to, the Chief Executive Officer under a binding non-employment agreement.  The term "binding non-employment agreement" is defined by item 88 as meaning an agreement:

        (a)   that is legally enforceable; and

        (b)   to which the Commonwealth or the Chief Executive Officer is a party; and

        (c)   that does not contain any or all of the terms and conditions of         employment of one or more employees; and

        (d)  that was entered into before the transition time.

248                    Under subitem 90(2) after transition time an act which is covered by this item have effect: 

            (a)   if done by the Chief Executive Officer before the transition time as if it   had been done by the Secretary; and

            (b)   if done in relation to the Chief Executive Officer, as if it had been done in relation to the Secretary.

249                    Under subitem 90(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.

250                    Subitem 90(4) authorises the Minister when making a declaration under subitem (3) in relation to a specified act to make a declaration by legislative instrument:

(a)       for an act done by the Chief Executive Officer before the transition, that the act has effect after the transition time as if it had been done by:

(i)    the Chief Executive Medicare; or

(ii)   the Chief Executive Centrelink.

(b)      for an act done in relation to the Chief Executive Officer before the transition time, that the act has effect after the transition time as if it had been done in relation to:

(i)    the Chief Executive Medicare; or

(ii)   the Chief Executive Centrelink.

251                    Item 88 defines the term "Chief Executive Medicare" as having the same meaning as in the Human Services (Medicare) Act 1973 as amended by this Schedule (Schedule 1) The meaning of the term under the amended Act is set out in item 3A by reference to new section 4 inserted by this Bill.

252                    Item 88 defines the term "Chief Executive Centrelink" as having the same meaning as in the Human Services (Centrelink) Act 1997 as amended by Schedule 2.

253                    Subitem 90(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time. 

254                    Subitem 89(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 91  Transitional—acts of the CEO under non-binding governmental agreements etc.

255                    This item deals with acts done by, or in relation to, the Chief Executive Officer before the transition time under, or for the purposes of, a "non-binding governmental agreement". 

256                    The term "non-binding governmental agreement" is defined by item 88 as meaning an agreement between

(a)       between Medicare Australia and a government body; and

(b)      that is not legally enforceable; and

(c)       that was entered into before the transition time.

257                    The term "Medicare Australia" is defined by item 88 as meaning Medicare Australia (within the meaning of the MA Act as in force immediately before the transition time).  Under section 20 of the MA Act in force before transition time, Medicare Australia comprises the Chief Executive Officer and the employees.  Accordingly, item 91 applies in relation to non-binding governmental agreements whether entered into by the CEO or by the staff of Medicare Australia.

258                    The term "government body" is defined by item 88 as a department of the Commonwealth, a State or a Territory or an agency, authority or instrumentality of the Commonwealth, a State or a Territory.

259                    The non-binding agreements which are subject to item 91 include service arrangements entered into in accordance with section 7 of the MA Act with the principal officers of Commonwealth authorities and agreements about the performance of functions entered into under section 7A of the MA Act before the amendment of those sections by this Bill.

260                    Under subitem 91(2) after transition time, if the act was done by the Chief Executive Officer, it has effect as if it had been done by the Chief Executive Medicare and, if done in relation to the Chief Executive Officer, it has effect as if it had been done in relation to the Chief Executive Medicare.

261                    Under subitem 91(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.

262                    Subitem 91(4) authorises the Minister when making a declaration under subitem (3) in relation to a specified act to make any of the following declarations by legislative instrument:

(a)       for an act done by the Chief Executive Officer before the transition, that the act has effect after the transition time as if it had been done by:

(i)    the Chief Executive Medicare; or

(ii)   the Chief Executive Centrelink.

(b)      for an act done in relation to the Chief Executive Officer before the transition time, that the act has effect after the transition time as if it had been done in relation to:

(i)    the Chief Executive Medicare; or

(ii)   the Chief Executive Centrelink.

263                    The purpose of giving the Minister power to make declarations for acts done by or in relation to the Chief Executive of Medicare Australia under non-binding governmental agreements to be taken to have been done by or in relation to the Chief Executive Centrelink (as well as by or in relation to the Chief Executive Medicare) is to allow flexibility in the integration of delivery of services.

264                    Subitem 91(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time. 

265                    Subitem 91(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 92  Transitional—other acts of the CEO

266                    This item deals with transition in relation to an act which was done by or in relation to the Chief Executive Officer before transition and to which none of items 89, 90 or 91 applies.

267                    Under subitem 92 (2) after transition time, if the act was done by the Chief Executive Officer, it has effect as if it had been done by the Chief Executive Medicare and, if done in relation to the Chief Executive Officer, it has effect as if it had been done in relation to the Chief Executive Medicare.

268                    Under subitem 92(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.

269                    Subitem 92(4) authorises the Minister when making a declaration under subitem (3) in relation to a specified act to make any of the following declarations by legislative instrument:

          (a)   for an act done by the Chief Executive Officer before the transition, that the act has effect after the transition time as if it had been done by:

(i)      the Secretary; or

(ii)     the Chief Executive Centrelink.

          (b)   for an act done in relation to the Chief Executive Officer before the transition time, that the act has effect after the transition time as if it had been done in relation to:

(i)    the Secretary; or

(ii)   the Chief Executive Centrelink.

270                    Subitem 92(5) provides that a declaration under subitem (3) or (4) before or after the transition time takes effect at the transition time. 

271                    Subitem 92(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 93  Transitional—documents lodged with Medicare Australia

272                    The item applies to a document that was given to, or lodged with, Medicare Australia before the transition time.  In accordance with section 25 of the AIA, the reference to documents generally includes documents lodged electronically.

273                    Under subitem 93 (2) any such document has effect as if it had been given to, or lodged with the Department.

274                    Under subitem 93(3) the Minister may, by legislative instrument, declare that subitem (2) does not apply in relation to a specified document. 

275                    Under subitem 93(4) at the same as making a declaration under subitem (3) the Minister may also declare by legislative instrument that after transition time the document has effect as if given to or lodged with the Chief Executive Medicare or as if given to or lodged with the Chief Executive Centrelink.

276                    Subitems 93(3) and (4) are intended to give the Minister power to adapt the general operation of subitem 93(2) to avoid anomalous or inappropriate outcomes in relation to particular categories of documents.

277                    Subitem 93(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time. 

278                    Subitem 93(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 94  Transitional—other acts done in relation to Medicare Australia etc.

279                    This item applies to an act done in relation Medicare Australia before the transition time which is not covered by item 93.

280                    Under subitem 94(2) the act has effect as if it had done in relation to the Department.

281                    Under subitem 94(3), the Minister may, by legislative instrument, declare that subitem (2) does not apply in relation to a specified act.  Under subitem 94 (4) when the Minister makes a declaration under subitem (3) in relation to a specified act, the Minister may at the same time, by legislative instrument, make a declaration that the act has effect, after the transition time, as if it had been done in relation to the Chief Executive Medicare or as if it had been done in relation to the Chief Executive Centrelink.

282                    Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 94(2) to avoid anomalous or inappropriate outcomes.

283                    Subitem 94(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.

284                    Subitem 94(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 95  Transitional—acts done by employees of Medicare Australia under Commonwealth laws etc.

285                    This item applies to an act done by, or in relation to, an employee of Medicare Australia before the transition time under a law of the Commonwealth.

286                    Under subitem 95(2) such an act has effect after transition time as if it had been done by, or in relation to, a Departmental employee.  "Departmental employee" is defined in item 88 to have the same meaning as in the Human Services (Medicare) Act 1973 as amended by this Schedule. 

287                    Under subitem 95(3) the Minister may by legislative instrument declare that subitem 95(2) does not apply to a specified act.

288                    Subitem 95(4) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.

289                    Subitem 95(5) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 96 Variation or revocation of instruments etc

290                    For avoidance of doubt this item provides that if an act to which this Division applies consists of the making of an instrument or an agreement, this Division does not by implication prevent the instrument or agreement from being varied, amended or revoked after transition time.

Item 96A Division 2 of Part 2 of Schedule 1 does not apply to making of lapsed instruments

291                    This item ensures that certain instruments made before the transition time under provisions of the Medicare Australia Act 1973 that have been repealed by the Bill are not continued by the transitional provisions.

292                    In particular, the following instruments will not be continued by a transitional provision:

(a)       directions conferring functions on the Chief Executive Officer under section 5(1)(d);

(b)      service arrangements agreed between the Chief Executive Officer and the principal officer of a Commonwealth authority under section 7(2);

(c)       Ministerial directions to the Chief Executive Officer about the exercise or performance of powers or functions under section 8;

(d)      requests from the Minister for information from the Chief Executive Officer under section 8AA; and

(e)       instruments made under Division 2 of Part IIA of the Medicare Australia Act 1973 (such as instruments appointing the Chief Executive Officer, granting a leave of absence and setting out terms and conditions).

293                    Item 96A is included for the avoidance of doubt.

Division 3 - Translation of references in documents

Item 97  Transitional—translation of references in binding non-employment agreements

294                    This item applies to any binding non-employment agreement which was in force immediately before the transition time.  Under subitem 97(2) after transition time the agreement has effect as if:

          (a)   a reference (if any) in the agreement to the Commonwealth of Australia represented by the Chief Executive Officer of Medicare Australia were a reference to the Commonwealth of Australia represented by the Department; and

          (b)   a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Secretary; and

          (c)   a reference (if any) in the agreement to Medicare Australia were a reference to the Department.

295                    These provisions allow these agreements to continue to operate effectively despite the abolition of the statutory office of the Chief Executive Officer of Medicare Australia and the integration of Medicare Australia into the Department. 

296                    Under subitem 97(3) the Minister may, by legislative instrument, declare that any or all of the paragraphs of subitem (2) do not apply in relation to a specified agreement. 

297                    Under subitem 97(4) when the Minister makes a declaration under subitem (3) in relation to a specified agreement, the Minister may at the same time, by legislative instrument, make a declaration that after transition time, the agreement has effect as if a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Chief Executive Medicare or to the Chief Executive Centrelink.

298                    Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 97(2) to avoid anomalous or inappropriate outcomes. 

299                    Subitem 97(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time. 

300                    Subitem 97(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

301                    For the avoidance of doubt, subitem 97(7) provides that this item does not, by implication, prevent the agreement from being varied, amended or revoked after the transition time.

Item 98  Transitional—translation of references in non-binding governmental agreements

302                    This item applies to any non-binding governmental agreement which was in force immediately before the transition time.  Under subitem 98(2) after transition time the agreement has effect as if:

          (a)   a reference (if any) in the agreement to the Commonwealth of Australia represented by the Chief Executive Officer were a reference to the Commonwealth of Australia represented by the Department; and

          (b)   a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Chief Executive Medicare; and

          (c)   a reference (if any) in the agreement to Medicare Australia were a reference to the Department.

These changes allow these agreements to continue to operate effectively despite the abolition of the statutory office of the Chief Executive Officer of Medicare Australia and the integration of Medicare Australia into the Department.

303                    Under subitem 98(3) the Minister may, by legislative instrument, make a declaration that any of the paragraphs of subitem (2) do not apply to a specified agreement.  Under subitem 98(4) when the Minister makes a declaration under subitem (3) in relation to a specified agreement, the Minister may at the same time, by legislative instrument, make a declaration that after transition time, the agreement has effect as if a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Secretary or to the Chief Executive Centrelink.

304                    Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 98(2) to avoid anomalous or inappropriate outcomes. 

305                    Subitem 98(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time. 

306                    Subitem 98 (6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

307                    For the avoidance of doubt, subitem 98(7) provides that this item does not, by implication, prevent the agreement from being varied, amended or revoked after the transition time.

Item 99  Transitional—translation of references in other instruments

308                    This item applies to an instrument which is not covered by item 97 or by item 98 and which was in force immediately before the transition time.  In this item, the definition of instrument includes:

        (a)   a contract, deed, undertaking or agreement; and

        (b)   a notice, authority, order or instruction; and

        (c)   an instrument made under an Act or under regulations;

but does not include an Act.  This is a broad definition but under subitem 99(2),  item 99 only applies to an instrument which is not covered by item 97 or item 98.

309                    Under subitem 99(2) after transition time the instrument has effect as if a reference (if any) in the instrument to Chief Executive Officer were a reference to the Chief Executive Medicare and as if a reference (if any) to Medicare Australia were a reference to the Department.  These changes allow such instruments to continue to operate despite the abolition of the office of Chief Executive Officer of Medicare Australia and the integration of Medicare Australia into the Department.

310                    Under subitem 99(3) the Minister may, by legislative instrument declare that subitem (2)'s provisions in relation to references to Chief Executive Officer and Medicare Australia do not apply in relation to a specified instrument. 

311                    Under subitem 99(4) when the Minister makes a declaration under subitem (3) in relation to a specified instrument, the Minister may at the same time, by legislative instrument, make a declaration that after transition time, the agreement  has effect as if a reference (if any) in the instrument to the Chief Executive Officer were a reference to the Secretary or to the Chief Executive Centrelink.

312                    Subitem 99(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time. 

313                    Subitem 99(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

314                    For the avoidance of doubt, subitem 99(7) provides that this item does not, by implication, prevent the instrument from being varied, amended or revoked after the transition time.

Item 99A Division 3 of Part 2 of Schedule 1 does not apply to lapsed instruments

315                    This item applies to certain instruments made before the transition time under provisions of the Medicare Australia Act 1973 that have been repealed by the Bill . These instruments are not continued by the transitional provisions (refer to paragraphs 291 to 293 ) and accordingly it is not necessary to translate the references in these lapsed instruments to new references.

316                    Item 99A is included for the avoidance of doubt.

Division 3A - Agreements about the performance of the CEO’s functions

Item 99B Transitional - agreements with Secretaries about the performance of the CEO’s functions

317                    This item applies to agreements that were made under section 7A of the Medicare Australia Act 1973 before the transition time between the Chief Executive Officer and the Secretary of a Department (other than the Human Services Department) that were in force immediately before the transition time.

318                    Subitem 99B(2) continues these agreements as if they had been made under section 7A of the Human Services (Medicare) Act 1973, as amended by this Schedule and as if the agreement had been made between the Secretary of the Human Services Department and the Secretary of the other Department. In addition, where there are references in the agreement to the functions of the Chief Executive Officer, subitem 99B(2) translates those references to be references to the functions of the Chief Executive Medicare.

319                    Under subitem 99B(3) the Minister may, by legislative instrument declare that subitem (2)'s provisions do not apply in relation to a specified agreement. 

320                    Subitem 99B(4) provides that a declaration made under subitem (3) after the transition time takes effect at the transition time. 

321                    Subitem 99B(5) provides that a declaration under subitem (3) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

322                    For the avoidance of doubt, subitem 99B(6) provides that this item does not, by implication, prevent the instrument from being varied, amended or revoked after the transition time.

323                    Subitem 99B(7) sets out three definitions.

(a)                Function is defined to include power.

(b)                Human Services Department is defined as the Department administered by the Human Services Minister.

(c)                Human Services Minister is defined as the Minister administering the Human Services (Medicare) Act 1973 as amended by this Schedule.

Item 99C Transitional - other agreements about the performance of the CEO’s functions

324                    This item applies to an agreement:

(a)                that was made under section 7A of the Medicare Australia Act 1973 as in force before the transition time;

(b)                that was in force immediately before the transition time; and

(c)                where section 99B(2) does not apply to the agreement.

325                    Subitem 99C(2) provides that agreements covered by item 99C cease to have effect at the transition time.

326                    Agreements that are intended to fall within item 99C include agreements between the Chief Executive Officer and a Minister or between the Chief Executive Officer and the head of a statutory agency. To the extent that any of these types of agreements need to be continued, they will be remade, at or after the transition time.

Item 99D Division 3A prevails over Divisions 2 and 3

327                    Item 99D provides that Divisions 2 and 3 of Part 2 (Transitional Provisions) of Schedule 1 (Amendment of the Medicare Australia Act 1973 have no effect to the extent that they are inconsistent with Division 3A.

Division 4 - Proceedings in courts and tribunals

Item 100  Transitional—administrative law proceedings

328                    This item applies to proceedings to which the Chief Executive Officer is a party and which are pending immediately before the transition time in: 

(c)    in the Administrative Appeals Tribunal; or

(d)    in the Social Security Appeals Tribunal; or

(e)    in a court under the Administrative Decisions (Judicial Review) Act 1977 ;

(f)    in a court or tribunal in relation to the review (otherwise than under the Administrative Decisions (Judicial Review) Act 1977 ) of:

(i)      a decision; or

(ii)     conduct engaged in for the purpose of making a decision; or

(iii)    a failure to make a decision.

329                    Subitem (2) substitutes the Chief Executive Medicare as a party to the proceeding.  This provision enables the effective continuation of the pending proceedings despite the abolition of the position of Chief Executive Officer. 

330                    Subitem (3) provides that where the court or tribunal considers it to be in the interests of the administration of justice to do so, the court or tribunal may by order determine that subitem (2) does not apply in relation to the proceedings and that a person specified in the order be substituted as a party to the proceedings. 

Item 101  Transitional—other proceedings to which the Commonwealth represented by the CEO is a party

331                    This item applies to proceedings pending immediately before the transition time in which a party to the proceedings is described as the Commonwealth represented by the Chief Executive Officer.  Subitem (2) provides that after transition time, the party is to be described as the Commonwealth represented by the Chief Executive Medicare.

332                    Subitem (3) provides that if the court or tribunal considers it is in the interests of justice to do so, the court or tribunal may order that subitem (2) does not apply and order how the party is to be described.

Item 102  Transitional—other proceedings to which the CEO or Medicare Australia is a party

333                    This item applies to proceedings pending immediately before the transition time which are not subject to item 100 and in which a party to the proceedings is the Chief Executive Officer or Medicare Australia. 

334                    Subitem (2) gives the court or tribunal power to order that after transition time another person be substituted as a party to the proceedings.

Item 103  Transitional—other proceedings to which the Commonwealth represented by Medicare Australia is a party

335                    This item applies to proceedings pending immediately before the transition time if a party to the proceedings is described as the Commonwealth of Australia represented by Medicare Australia.  Subitem (2) gives the court or tribunal power to order that the party is to be described in the manner specified in the order.

Item 104  Other powers of courts and tribunals unaffected

336                    This item provides that the powers conferred on a court or tribunal under this Division are in addition to, and not instead of, any other powers of the court or tribunal.

Division 5 - Employees

337                    The Items in Division 5 deal with transitional matters arising from the movement of employees from Medicare to the Department. It is intended that a single enterprise agreement will be negotiated for all Department employees to take effect from the transition date. If a single enterprise agreement is not successfully negotiated before the transition date, the Medicare Australia Collective Agreement 2008-2011 or Medicare Australia (Medical Officers) Collective Agreement 2008-2011 will cover the Department and the relevant transferring Medicare employee in relation to Department work until a single enterprise agreement is successfully negotiated.

338                    If a person becomes a new employee, as defined by subitem 67(6), before a single enterprise agreement is successfully negotiated, the Secretary may determine that the Centrelink Agreement 2009-2011 or the Medicare Australia Collective Agreement 2008-2011 or the Medicare Australia (Medical Officers) Collective Agreement 2008-2011 applies to the new employee until a single enterprise agreement is successfully negotiated. 

Item 105  Transitional—movement of employees from Medicare Australia to the Department

339                    This item states that the movement of APS employees from Medicare Australia to the Department is to be in accordance with a determination under the machinery of government provision in section 72 of the PS Act.

Item 106  Transitional—employment agreements and determinations

340                    This item deals with the transitional arrangements for transferring employees.  Subitem 106(1) defines a "transferring employee" as a person who was an APS employee immediately before the transition time and is covered by a machinery of government determination under section 72 of the PS Act which causes the person at transition time to become an employee in the Department. 

341                    If a person is a transferring employee (other than an SES employee) and immediately before the transition time the person's employment in Medicare Australia was covered by a "designated agreement", then the detailed provisions in subitem (2) dealing with the operation of the designated agreement from the transition time apply in relation to the transferring employee's work in the Department. 

342                    Subitem (11) defines "designated agreement" as the Medicare Australia Collective Agreement 2008-2011 , the Medicare Australia (Medical Officers) Collective Agreement 2008-2011 or an enterprise agreement (as defined under the Fair Work Act 2009 ).

Transferring non-SES employees covered by a designated agreement

343                    If subitem (2) applies then:

(a)                Under paragraph (d) the designated agreement (as in force immediately before the transition time) covers the Commonwealth and the transferring employee in relation to the Department work (as defined in subitem (11) to mean work performed after transition by the employee in the Department); and

(b)                Under paragraph (e) no other enterprise agreement, modern award or award-based transitional instrument covers the transferring employee while the designated agreement covers the Commonwealth and the transferring employee.  The term "award-based transitional instrument" is defined by subitem (11) as having the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .  Under subitem (11) the term "modern award" has the same meaning as in the Fair Work Act.

(c)                Under paragraph (f) the designated agreement has effect after the transition time as if it had been made with the Secretary on behalf of the Commonwealth.

(d)               Under paragraph (g) if the transferring employee becomes an SES employee after the transition time - paragraphs (c), (d) and (e) cease to apply in relation to the transferring employee;  and

(e)                Under paragraph (h), if an enterprise agreement is made after the transition time by the Secretary on behalf of the Commonwealth - and apart from paragraphs (d), (e) and (f), the enterprise agreement covers the Commonwealth and the transferring employee, then paragraphs (d), (e) and (f) cease to apply to the transferring employee when the enterprise agreement commences.  (Subitem (8) provides that paragraphs 2(h), 4(j) and 7(h) have effect subject to section 58 of the Fair Work Act.  Section 58 of the Fair Work Act generally requires that only one enterprise agreement can apply to an employee at a particular time.)

Transferring employees covered by an AWA or pre-reform AWA

344                    Under subitem (3) if a transferring employee's employment in Medicare Australia was covered immediately before the transition time by an AWA or pre-reform AWA, then that AWA or pre-reform AWA, has effect after the transition time, in relation to the transferring employee’s Department work, as if it had been made with the Secretary on behalf of the Commonwealth.  This provision is consequential on the abolition of Medicare Australia. 

345                    Under subitem (11) for item 106:

(a)                the term AWA has the same meaning as in Schedule 7A to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act; and

(b)                the term pre-reform AWA has the same meaning as in Schedule 7 to the Workplace Relations Act  as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act.

346                    Subitem (3) in effect preserves the transferring employee's position under the AWA or pre-reform AWA after transition.  However, the coverage of the employee under the AWA or pre-reform AWA after transition may cease in accordance with subitem (4). 

347                    Subitem (4) sets out procedures for shifting transferring employees covered by an AWA or pre-reform AWA to coverage after transition by a designated agreement.  Subitem (4) provides for that shift to occur during a period (the cessation time ):

(a)                beginning at transition time; and

(b)                ending immediately before the commencement of an enterprise agreement made after the transition time by the Secretary on behalf of the Commonwealth, where (apart from the AWA or pre-reform AWA) the enterprise agreement covers the Commonwealth and the transferring employee in relation to Department work. 

348                    Under paragraphs (d), (e) and (f) of subitem (4) if during the cessation time there is a designated agreement covering the Commonwealth under subitem (2) which was made before the transition time, then the Secretary, may by written notice to the transferring employee, determine that the designated agreement is applicable to the transferring employee for the purposes of subitem (4).  The notice may be given by the Secretary before, or within 14 days after, the cessation time and takes effect from the cessation time.

349                    Subitem (10) states that a determination by the Secretary under these provisions is not a legislative instrument.  The instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers.

350                    If the Secretary gives a notice to an employee then the employee is subject to the same coverage with the same qualifications (including section 58 of the Fair Work Act) as applies to other transferring employees under subitem (2). 

Transferring employees whose employment is covered by a determination under subsection 24(1) of the Public Service Act

351                    If the Secretary gives a notice to an employee then the employee is subject to the same coverage with the same qualifications (including section 58 of the Fair Work Act) as apply to other transferring employees under subitem (2). 

352                    Under subsection 24(1) of the PS Act an Agency Head may make determinations of remuneration and other terms and conditions of employees.  Under subsection 24(2), the power in subsection (1) may not be used to reduce the benefit to an employee of a term or condition under a fair work instrument or a WR Act transitional instrument.

353                    If subitem (5) applies, then the determination (to the extent to which it relates to the person) has effect after the transition time, in relation to the transferring employee’s Department work, as if the determination had been made by the Secretary; and the determination were applicable to the person’s employment in the Department.

354                    Paragraph (d) of subitem (5) declares that the effect which subitem (5) gives to such determinations does not prevent the variation or revocation of the determination.

355                    Subitem (5) is intended to preserve the benefit of any subsection 24(1) PS Act determinations which have been made in relation to transferring employees subject to the possibility of variation or revocation of any such determinations in accordance with the PS Act.

New employees

356                    Subitem (7) applies in relation to "new employees" defined in subitem (6) as a person who is an APS employee (other than an SES employee) in the Department and who is not a transferring employee (as defined in subitem (1)).  If

(a)     a designated agreement covers the Commonwealth because of subitem (2); and

(b)     the designated agreement was made before the transition time; and

(c)     after the transition time, a person becomes a new employee; and

357                    then under paragraph (d) the Secretary, may by written notice given to the new employee, determine that the designated agreement is applicable to the new employee for the purposes of this subitem.  The notice may be given by the Secretary before, or within 14 days after the cessation time and takes effect from the cessation time.

358                    Subitem (10) states that a determination by the Secretary under these provisions is not a legislative instrument.  The instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers.

359                    If the Secretary gives a notice to an employee, then the employee is subject to the same coverage under the designated agreement with the same qualifications (including section 58 of the Fair Work Act) as apply to transferring employees under subitem (2). 

Section 58 of the Fair Work Act 2009

360                    If the Secretary gives a notice to an employee, then the employee is subject to the same coverage under the designated agreement with the same qualifications (including section 58 of the Fair Work Act) as apply to transferring employees under subitem (2). 

Delegation

361                    Subitem (9) authorises the Secretary to delegate the power to make determinations by giving notices under subitems (4) and (7) to an SES employee in the Department.  It is appropriate for the Secretary to be able to delegate this power given the size of the workforce involved.

Legislative Instrument

362                    Subitem (10) declares that the determinations which the Secretary is authorised to give under subitems (4) and (7) are not legislative instruments.  These instruments would not be legislative instruments within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers.

Definitions

363                    Subitem (11) sets out the definition of terms used in item 106.  Each of these definitions has been referred to above in the explanation of the first provision of item 106 to use the defined term. 

Item 107  This Division Prevails over Division 2 and 3

364                    This item provides that Division 2 and 3 have no effect to the extent if any to which they are inconsistent with this Division.

Item 108  Transitional—transfer of appropriated money

365                    This item provides that in Appropriation Acts for the financial year beginning 1 July 2010 or earlier financial years references to Medicare Australia are to be read as references to the Department.

366                    This is consistent with the integration of Medicare Australia into the Department.

Item 109  Transitional—responsibility for Commonwealth resources

367                    This item transfers to the Secretary at transition time responsibility under the Financial Management and Accountability Act 1997 for any Commonwealth resources for which the Chief Executive Officer was responsible immediately before the transition time.

Item 110  Transitional—final annual report

368                    This provision provides that despite amendments of section 42 of the MA Act made by this Schedule, that section continues to apply, in relation to the report for the financial year beginning on 1 July 2010, as if those amendments had not been made. 

369                    However, the reporting obligation is imposed on the Secretary instead of the Chief Executive Officer.  It is intended that the Secretary could provide a single consolidated annual report for the financial year beginning 1 July 2010 to meet:

·            the Secretary's obligation to provide the report required by item 110;

·            the Secretary's obligation to provide a similar report in relation to the performance of the functions and powers of the Chief Executive Officer of Centrelink and on the operations of Centrelink for the financial year beginning 1 July 2010 in accordance with transitional provisions in relation to Centrelink being introduced by this Bill; and

·            the Secretary's direct obligations to provide an annual report in accordance with section 63 of the PS Act in relation to the Department for the financial year beginning 1 July 2010.

Item 111  Transitional—other reporting requirements

370                    This item imposes on the Secretary any obligation under a law of the Commonwealth which, if this Schedule had not been enacted, would have applied to the Chief Executive after the transition time to prepare a report to give to another person in relation to Medicare Australia relating either to the financial year beginning 1 July 2010 or to a period that ends on or before 30 June 2011.

Item  112  Transitional—transfer of records to the Department

371                    This item transfers any records or documents that were in possession of the Chief Executive Officer or Medicare Australia immediately before the transition time to the Department.

Item 113  Transitional—subsections 5(10) to (14) of the Human Services (Medicare) Act 1973

372                    Subitem (1) of this item provides that for the purposes of subsections 5(10) to (14) of the Human Services (Medicare) Act 1973 as amended by this Schedule, it is immaterial whether regulations mentioned in paragraph 5(10) of that Act were made before, at or after the transition time. For example, subitem (1) confirms that Part 2 of the Medicare Australia Regulations 1975 is valid.

373                    Subitems (2) and (3) have been included to avoid any doubt about the validity of directions made under section 5(1)(d) of the Medicare Australia Act 1973 before the transition time. For example, subitems (2) and (3) confirm that section 5 of the Medicare Australia (Functions of the Chief Executive Officer) Direction 2005 is valid. Section 5(1)(d) is repealed by item 28B (refer to paragraphs 61 and 62 of this explanatory memorandum).

Item 114  Transitional—amendments of sections 8ZF and 8ZG of the Medicare Australia Act 1973

374                    This item provides that despite the repeal of sections 8ZF and 8ZG of the MA Act those sections continue to apply, after the transition time, in relation to warrants issued before the transition time, as if that repeal had not happened. 

Item 115  Transitional—use or disclosure of information

375                    Section 8RA of the Human Services (Medicare) Act 1973 as amended by this Schedule applies in relation to notices issued under section 8P of that Act after the transition time.

Item 116  Transitional—amendments of section 8ZN of the Medicare Australia Act 1973

376                    Despite the amendments of section 8ZN of the MA Act made by this Schedule, that section continues to apply, after the transition time, in relation to powers exercised under Part IID of the MA Act before the transition time, as if those amendments had not been made.

377                    Section 8ZN of the Human Services (Medicare) Act 1973 as amended by this Schedule applies in relation to powers exercised under Part IID of that Act after the transition time.



Schedule 2 - Amendment of the Commonwealth Services Delivery Agency Act 1997

Part 1 - Amendments

Commonwealth Services Delivery Agency Act 1997

Item 1  Title

378                    This is a formal provision changing the title of the Act.

Item 2  Section 1

379                    This is a formal provision changing the short title of the Act.

Item 3  Section 2A

380                    This item repeals this section because it is redundant.

381                    Chapter 2 of the Criminal Code now applies to all Commonwealth offences.

Item 4  (definition of Agency )

382                    This item repeals this definition because the Agency established by the Act is being abolished by this Bill. 

Item 5  Section 3

383                    This item inserts a definition of the term "centrelink programs" by reference to new section 40 being inserted by this Bill. 

Item 6  Section 3

384                    This item inserts a definition of the term "Chief Executive Centrelink" which refers to the new section 7 being inserted in the Centrelink Act by this Bill. 

Item 7  Section 3

385                    This item inserts a definition of the term "Chief Executive Medicare" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill. 

Item 8  Section 3 (definition of Chief Executive Officer )

386                    This item repeals this definition because the Bill abolishes this position.  The term will no longer be used in the Act.

Item 9  Section 3 (definition of Commonwealth authority )

387                    This item repeals this definition because the term will no longer be used in the Act.

Item 10  Section 3 (definition of Commonwealth service )

388                    This item repeals this definition because the term will no longer be used in the Act.

Item 11  Section 3

389                    This item defines the term "Departmental employee" which is used in:

·            amended provisions dealing with delegations by the Chief Executive Centrelink; and

·            new provisions dealing with assistance to the Chief Executive Centrelink in the performance of functions of the Chief Executive Centrelink.

390                    Those amendments and new provisions and this definition provide the basis for all employees of the integrated Department to be able to support the Chief Executive Centrelink in carrying out his or her functions.

Item 12  Section 3 (definition of employee )

391                    This item repeals this definition because this definition of "employee" will not be appropriate to the provisions of the amended Act which use the term "employee". 

Item 13  Section 3

392                    This item defines the word "function" to include "power".

393                    This amendment and other amendments in the Bill are intended to avoid doubt about whether the conferral of functions under the CSDA Act to exercise a statutory power is effective to enable exercise of the statutory power without separate delegation by the holder of the statutory power.

394                    This issue was referred to in the ANAO Audit Report No 39 2009-2010 "Medicare Australia's Administration of the Pharmaceutical Benefits Scheme" at paras 2.54-2.65.

Item 14  Section 3

395                    This item inserts a definition of the term "medicare program" by reference to the Human Services (Medicare) Act 1973 as amended by this Bill.  This term is used in the section 40 definition of "centrelink program." 

Item 15  Section 3

396                    This item repeals the definition of this term "perform" to include "exercise". 

397                    This change is consequential on the change to the definition of "function" to include "power".

Item 16  Section 3 (definition of principal officer )

398                    This item repeals this definition because the term will no longer be used in the Act.

Item 17  Section 3

399                    This item inserts a definition of the term "Secretary".

Item 18  Section 3 (definition of service arrangements )

400                    This item repeals the definition because the term will no longer be used in the Act.

Item 19  Section 3

401                    This item inserts a definition of "service delivery functions" by reference to the new section 8A. 

Item 20  Part 2

402                    This item repeals Part 2 which had established Centrelink comprising the Chief Executive Officer and the "employees".

403                    The repeal of Part 2 causes Centrelink to cease to exist as a separate entity.  This is required for the integration of Centrelink into the Department.

Item 21  Part 3 (heading)

404                    This item repeals the heading and substitutes a heading which refers to "Chief Executive Centrelink". 

405                    This change is consistent with the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

Item 22  Division 1 of Part 3 (heading)

406                    This item repeals the heading because Part 3 will no longer be divided into Division 1 and Division 2.

407                    This change is consequential on the repeal of Division 2.

Item 23  Section 7

408                    This item repeals section 7 which had provided for the Chief Executive Officer with the prior written approval of the Minister to enter into arrangements with the principal officer of a Commonwealth authority for the provision of Commonwealth services specified in the arrangements.  These "service arrangements" were part of a purchaser/provider approach to service delivery.  A more flexible approach to service delivery and a broader "service delivery function" for the Chief Executive Centrelink is provided for in the new section 8A.

409                    This item also inserts a new section 7 which establishes a statutory office of Chief Executive Centrelink. 

410                    Under subsection 7(2) the Chief Executive Centrelink is to be the SES employee in the Department specified in a written instrument made by the Secretary.

411                    Subsection 7(3) provides that an SES employee must not be specified in an instrument under paragraph 7(2)(a) if the employee is specified as Chief Executive Medicare (under paragraph 4(2)(a) of the Human Services (Medicare) Act 1973 ) or as Child Support Registrar (under paragraph 10(2)(a) of the Child Support (Registration and Collection) Act 1988 ).

412                    The intention of subsection 7(3) is to prevent one person holding more than one of the positions of Chief Executive Centrelink, Chief Executive Medicare or Child Support Registrar at the same time.

413                    The Secretary will not be eligible to be appointed as Chief Executive Centrelink because the Secretary is not an APS employee and therefore is not an SES employee within the meaning of section 34 of the PS Act. 

414                    Subsection (4) states that an instrument under paragraph (2)(a) is not a legislative instrument.  This instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers.

415                    Item 23 also inserts section 7A providing for the Secretary to appoint an SES employee in the Department to act as the Chief Executive Centrelink during a vacancy in the position of Chief Executive Centrelink or during any period or during all periods when the Chief Executive Centrelink is absent from duty or from Australia or is, for any reason, unable to perform the duties of the position.  Subsection 7A(2) provides that a person who is, or is acting as, either the Chief Executive Medicare or the Child Support Registrar, may not be appointed to act as Chief Executive Centrelink.  Maintaining this separation of the persons carrying out the functions of these different positions is consistent with subsection 7(3). 

416                    The Secretary will not be eligible to be appointed to act as Chief Executive Centrelink because the Secretary is not an APS employee and therefore is not an SES employee within the meaning of section 34 of the PS Act. 

417                    Subsection 7A(3) provides that anything done by or in relation to a person purporting to act under an appointment under subsection (1) is not invalid merely because there was a defect or irregularity in connection with the appointment or the appointment had ceased to have effect or the occasion had not arisen or had ceased.  This provision is intended, as far as possible, to prevent technical defects in relation to the appointment of a person to act in the position of Chief Executive Centrelink from affecting the validity of things done by or in relation to such a person.

Item 24  Subsection 8(1)

418                    This item amends this provision by replacing a reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".

419                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

Item 25  Paragraph 8(1)(a)

420                    This item substitutes a reference to the "service delivery functions" mentioned in the amended section 8A for the term "service arrangements" which will no longer be used in the Act. 

Item 26  Paragraph 8(1)(b)

421                    This item amends this provision by replacing references to "Chief Executive Officer" with references to "Chief Executive Centrelink ".

422                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

Item 26A After paragraph 8(1)(b)

423                    This item inserts a new paragraph 8(1)(ba) that gives the Chief Executive Centrelink any functions that are conferred on him or her by regulations. This new power to confer additional functions on the Chief Executive by regulations has been included to ensure appropriate flexibility for the delivery of new programs and initiatives. It also ensures that the mechanisms for conferring functions on the Chief Executive Centrelink are the same as the mechanisms for conferring functions on the Chief Executive Medicare.

Item 27 Paragraph 8(1)(c)

424                    This item repeals paragraph 8(1)(c). Under paragraph 8(1)(c) the Minister could give the Chief Executive Officer additional functions by issuing a direction in writing. This power is no longer required because the Chief Executive Centrelink ’s service delivery functions have been broadened (refer to paragraphs 433 to 440 of this explanatory memorandum).

Item 27A Subsection 8(2)

425                    This item repeals subsection 8(2). This repeal is consequential on the repeal of the power of the Minister to confer functions on the Chief Executive under paragraph 8(1)(c).

 

Item 28  At the end of section 8

426                    This item adds detailed provisions in subsections (3) to (15) to avoid doubt about the effect of subsections (1) and (2) of section 5 in relation to issues referred to in the ANAO Audit Report No 39 2009-2010 "Medicare Australia's Administration of the Pharmaceutical Benefits Scheme" at paras 2.54-2.65.

427                    The delivery of services through Human Service portfolio agencies has already involved the separation of the policy responsibility for an Act - as determined by the allocation of administrative responsibility for an Act through the Administrative Arrangements Orders - from the day to day carrying out of particular functions and the exercise of particular statutory powers to deliver services and to carry out associated regulatory decision making.

428                    The intent of subsections (3) to (15) is to confirm that there is to be flexibility in the structures and arrangements which Government may adopt for delivery of services and for the exercise of associated regulatory powers.  Similar provisions are being introduced into the Human Services (Medicare) Act 1973 as amended by this Bill.

429                    The options for service delivery and the exercise of associated regulatory powers are to include the possibility of regulations conferring the capacity to exercise statutory powers and to carry out particular functions in the place of a primary holder of the power or function without needing to distinguish powers from functions and even if the primary holder of that power or function is in another portfolio. 

430                    The intent of subsections (3) to (15) is to put beyond doubt that such regulations give the Chief Executive Centrelink the capacity to act in the place of the primary holder of that power.  When carrying out such functions and exercising such powers, the Chief Executive Centrelink is not a delegate of the primary holder of the function or power and is not an agent subject to direction by the primary holder of the power. 

431                    Accountability for the carrying out of such functions and for the exercise of such powers when conferred on the Chief Executive Centrelink is through the Human Services Department.  Accountability for the policy of the legislation is through the policy Department with AAO responsibility for the Act.

Item 29  Section 8A

432                    This item repeals section 8A providing for written agreement between the Chief Executive Officer and the principal officer of a Commonwealth authority about the exercise or performance of the Chief Executive Officer's powers or functions.  A new provision that is similar to section 8A is included as a new section 8B (refer to paragraphs 441 to 441 below).

433                    This item inserts a new section 8A describing the Chief Executive Centrelink 's "service delivery functions".  

434                    The "service delivery function" under the old section 7 which is repealed by this Bill was based on a purchaser provider approach to service delivery. 

435                    There had been a widening of the Chief Executive Officer's functions through Ministerial Directions including the Commonwealth Services Delivery Agency Direction 2001 , the Commonwealth Services Delivery Agency (Functions of Chief Executive Officer - Call Centre Services) Direction 2007 , the Commonwealth Services Delivery Agency (Functions of Chief Executive Officer) Direction 2009 , the Commonwealth Services Delivery Agency (Functions of Chief Executive Officer - Commonwealth Services and Enabling Services) Direction 2010 and the Commonwealth Services Delivery Agency (Functions of Chief Executive Officer - Management Services) Direction 2010 .  This had resulted in a complex patchwork of bases for service delivery.

436                    The new section will provide a clear basis in the Act for the Chief Executive Centrelink with the support of the Department to have flexibility to continue existing areas of delivery of services, benefits, programs and facilities and to take on new areas. 

437                    The new section no longer makes the "service delivery function" depend on there being in place a service arrangement entered into between the Chief Executive Officer and the principal officer of a Commonwealth authority. 

438                    The new section also brings within the Chief Executive Centrelink's service delivery function the provision of services, benefits, programs and facilities on behalf of persons other than the Commonwealth.  This new aspect of the definition of "service delivery function" provides a clear basis in the Act for the Chief Executive Centrelink to coordinate service provision with State Government agencies and Non-government organisations. 

439                    This aspect of the function will be particularly important in times of response to natural emergencies but is not limited to emergency situations.

440                    For constitutional reasons the service delivery function is limited to providing services etc "for a purpose for which the Parliament has power to make laws".

441                    Item 29 inserts a new section 8B that is based on the previous section 8A. The new section 8B recognises that the Secretary of the Human Services Department may enter into a written agreement with the Secretary of another Department about the exercise or performance of the Chief Executive Centrelink 's functions. The continued use of agreements will ensure that governance arrangements are documented that reflect the respective roles of the department responsible for the policy and outcomes of a program and the department responsible for the delivery of the program.

442                    It is the responsibility of the Secretary of Human Services (rather than the Chief Executive Centrelink) to enter into agreements under section 8B because the Secretary has overall management responsibility for the Department of Human Services’ operations.

Item 30  Sections 9, 10 and 11

443                    This item repeals sections 9, 10 and 11.

444                    Section 9 gave the Minister power to give directions to the Chief Executive Officer about the exercise or performance of the Chief Executive Officer's powers or functions and provided for the reporting of such directions.  With the abolition of the office of Chief Executive Officer and the creation of a new office of Chief Executive Centrelink within the Department, there is no need for the Minister to be given an express power to direct the Chief Executive Centrelink.  The Chief Executive Centrelink will be accountable through the Secretary to the Minister for the carrying out of his or her functions.  To that extent the Chief Executive Centrelink will be subject to some Ministerial direction as an employee of the Department. 

445                    In accordance with ordinary principles of administrative law, to the extent that the functions of the Chief Executive Centrelink involve the exercise of statutory powers which require the exercise of independent discretion, the Chief Executive Centrelink will not be subject to direction from the Minister or anyone else about the exercise of that discretion.

446                    Section 10 gave the Minister power to request from the Chief Executive Officer information about the exercise or performance of the Chief Executive Officer's powers or functions.  This provision is repealed because following the amendments brought in by this Bill, the Chief Executive Centrelink will be an SES officer within the Department.  As such the Chief Executive Centrelink will be accountable through the Secretary to the Minister and there will be no need for an express power for the Minister to request information.

447                    Paragraph (1)(b) of section 10 gives the Minister power to request from the Chief Executive Officer information about the operation of Centrelink.  This provision is repealed because it is redundant on the abolition of Centrelink.

448                    This item also repeals section 11 which relates to management of Centrelink.  This provision is repealed because it is redundant on the abolition of Centrelink.

Item 31  Subsection 12(1)

449                    This item amends subsection 12(1) which authorises delegation by the Chief Executive of Officer of powers or functions to employees. 

450                    This item replaces references to "Chief Executive Officer" with references to "Chief Executive Centrelink".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

451                    This item also replaces the reference in this subsection to "an employee" with a reference to "a Departmental employee".  This change is consequential on the repeal of the definition of "employee" and the insertion of a definition of "Departmental employee". 

452                    Departmental employees who have been delegated functions by the Chief Executive Centrelink may also be delegated functions by the Chief Executive Medicare and the Child Support Registrar. 

453                    These changes are consistent with the integration of Centrelink staff into the Department and with the objective that there should not be any barrier to any of the employees of the integrated Department assisting in carrying out the functions of the Chief Executive Centrelink.

454                    This item also removes this subsection's reference to delegation of "powers".  This reference will not be necessary following this Bill's amendment of the definition of "function" to include power.

455                    The power to delegate continues to not be limited to SES employees because of the very wide range of functions (including powers) that come within the functions of the Chief Executive Centrelink and because of the large volume of exercises of powers and functions that are carried out on a daily basis.

Item 32  After subsection 12(1)

456                    This item inserts a new subsection 12(1A).  The new subsection confirms that the power to delegate in subsection 12(1) can be exercised in relation to functions of the kind referred to in subsections 8(3) or (10). 

457                    This new subsection is intended to avoid doubt about whether functions of the kind referred to in subsections 8(3) or (10) can be delegated by the Chief Executive Centrelink. 

458                    This issue was referred to in the ANAO Audit Report No 39 2009-2010 "Medicare Australia's Administration of the Pharmaceutical Benefits Scheme" at para 2.62

Item 33  Subsection 12(2)

459                    This item replaces the subsection 12(2) reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

460                    This item also removes this subsection's reference to powers.  This reference will not be necessary following this Bill's amendment of the definition of "function" to include power.

Item 34  Subsection 12(3)

461                    This item replaces the subsection 12(1) reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink."  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

462                    This item also removes this subsection's reference to powers.  This reference will not be necessary following this Bill's amendment of the definition of "function" to include power.

Item 35  Subsection 12(4)

463                    This item replaces the first reference in subsection 12(4) to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".  This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

464                    This item also removes this subsection's reference to powers.  This reference will not be necessary following this Bill's amendment of the definition of "function" to include power.

Item 36  Subsection 12(4)

465                    This item amends the subsection by replacing a reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".

466                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

Item 37  At the end of section 12

467                    This item adds a new subsection which provides that the Chief Executive Centrelink must not delegate functions under subsection (1) or (3) to a Departmental employee who is the Chief Executive Medicare or the Child Support Registrar.  This restriction is consistent with the restrictions in sections 7 and 7A on who can be appointed to be the Chief Executive Centrelink or who can be appointed to act as Chief Executive Centrelink. 

468                    The Chief Executive Centrelink will not be able to delegate functions to the Secretary of the Department because under the terms of subsection 12(1) as amended by this Bill, delegations can only be made to a "Departmental employee".  The Secretary is not a Departmental employee.

Item 38  After section 12

469                    This item inserts new sections 13 to 16. 

470                    Sections 13 to 15 deal with the conferral of powers and functions on the Chief Executive Centrelink by State and Territory laws.  These provisions are designed to ensure constitutional validity of the conferral of functions or powers on the Chief Executive Centrelink by, or by reference to, State and Territory laws.

471                    Subsection 13(3) provides that the Chief Executive Centrelink cannot exercise a power or perform a function under a law of a State or Territory without the written approval of the Minister.

472                    Section 16 provides that a Departmental employee may assist the Chief Executive Centrelink in the performance of any of the functions of the Chief Executive Centrelink.  This provision ensures that any Departmental employee can assist the Chief Executive Centrelink in carrying out his or her functions.  This is part of the integration of service delivery through the Department.

Item 39  Division 2 of Part 3

473                    This item repeals the provisions establishing the statutory office of Chief Executive Officer and dealing with the appointment to that office and matters incidental to that office.

Item 40  Part 4

474                    This item repeals Part 4 which contains two sections - section 35 and section 37.

475                    Section 35 declared the Chief Executive Officer and Centrelink's employees as a statutory agency for purposes of the PS Act with the Chief Executive Officer as the head of that agency.  The repeal of section 35 is required for the integration of Centrelink into the Department.

476                    Section 37 authorised the Chief Executive Officer to engage consultants.  Section 37 is being repealed because the statutory office of Chief Executive Officer is being abolished and because the engagement of consultants through the Department is subject to general Commonwealth procedures and does not require express statutory authorisation.

Item 41  Subsection 38(1)

477                    This item amends the offence provisions which make it an offence - subject to qualifications in subsections (2) and (3) - to make particular uses of "protected name" or "protected symbol" by replacing the requirement of written consent of the "Chief Executive Officer" with a reference to the written consent of the "Secretary".  The office of Chief Executive Officer is being abolished by this Bill.  The substitution of a requirement for consent of the Secretary rather than a requirement for consent of the Chief Executive Centrelink is consistent with the integration of Centrelink into the Department and with other amendments to section 38 made by this Bill which indicate that section 38 is to protect a range of activities of the Department including, but not limited to, activities connected with the Chief Executive Centrelink functions.

Items 42 and 43  Paragraph 38(1)(f), Subsections 38(2) and (3)

478                    These items replace the references in these provisions to "the protected symbol" with a reference to "a protected symbol".  These changes are consequential on the repeal by this Bill of the previous subsection 38(4) definition of the term "protected symbol" and the substitution of a new definition of "protected symbol" under which there can be more than one protected symbol.

Item 44  Subsection 38(4) (definition of protected symbol )

479                    This item repeals the subsection 38(4) definition of "protected symbol" and substitutes a new definition.  This definition is relevant to the offence provisions in subsection (1) which make it an offence to make certain uses of a protected symbol without the written consent of the Secretary.

480                    The definition being repealed had referred to the Agency's symbol whose design is set out in the regulations.  This Bill abolishes the provisions which had established the Agency.

481                    Paragraph (a) of the new definition brings with the definition a symbol that is used, or for use, in connection with the performance of any or all of the functions of the Chief Executive Centrelink and the design of which is set out in regulations.

482                    Paragraph (b) also brings within the definition a symbol that is used, or for use, in connection with one or more services, benefits, programs or facilities, where Departmental employees are involved in the provision of those services, benefits, programs or facilities and the design of which is set out in the regulations.  New subsections inserted in section 38 by item 46 further explain the scope of paragraph (b).

Item 45 Subsection 38(4) (paragraph (c) of the definition of protection time )

483                    This item replaces the reference in this provision to "the protected symbol" with a reference to "a protected symbol".  This change is consequential on the repeal by this Bill of the previous subsection 38(4) definition of the term "protected symbol" and the substitution of a new definition of "protected symbol" under which there can be more than one protected symbol.

Item 46  At the end of section 38

484                    This item adds subsections (5), (6) and (7) to section 38.

485                    Subsection (5) relates to the definition of "protected name" in subsection (4).  Names which are within the definition of "protected names" are subject to the offence provisions of subsection (1).  Under subsection (1) it is an offence (subject to some qualifications set out in subsections (2) and (3)) for a person to use a protected name in one of the ways set out in subsection (1) without the written consent of the Secretary. 

486                    The new subsection (5) provides that to avoid doubt a name may be prescribed by regulations made for the purposes of paragraph (b) of the definition of "protected name" in subsection (4) even if the name is not used, or for use, in connection with the performance of any or all of the functions of the Chief Executive Centrelink.  The intention of subsection (5) is to prevent any suggestion that the regulation-making power should be interpreted as being impliedly limited by a requirement of some connection with the Chief Executive Centrelink. 

487                    It is intended that the power to prescribe protected names be broad so that any names associated with the activities of the Department can be prescribed.

488                    The new subsection (6) provides that, to avoid doubt, the design of a symbol may be prescribed for the purposes of subparagraph (b) of the definition of protected symbol in subsection (4) even if the symbol is not used, or for use, in connection with the performance of any or all of the functions of the Chief Executive Centrelink. 

489                    The intention of subsection (6) is to confirm that the power under paragraph (4)(b) can be used to prescribe the design of a symbol that is used, or for use, in connection with one or more services, benefits, programs or facilities, where Departmental employees are involved in the provision of those services, benefits, programs or facilities regardless of whether those services have any connection with the Chief Executive Centrelink.

490                    The new subsection (7) provides that for the purposes of the new subparagraph (b)(i) of the definition of "protected symbol" in subsection (4), a person is taken to be involved in the provision of services, benefits, programs or facilities if the person’s duties include:

(a)     making payments in connection with the services, benefits, programs or facilities; or

(b)     making decisions in connection with the services, benefits, programs or facilities; or

(c)     collecting information in connection with the services, benefits, programs or facilities; or

(d)     providing information about the services, benefits, programs or facilities.

Item 47  Section 39

491                    This item amends the section by replacing a reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".

492                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

Item 48  Section 40

493                    This item repeals this section which had required the Chief Executive Officer to provide an annual report to the Minister

494                    This repeal is consequential on the abolition of Centrelink as a separate statutory authority and on the abolition of the office of Chief Executive Officer.  The Secretary will report on the carrying out of the functions of the Chief Executive Centrelink as part of the annual report for the integrated Department in accordance with section 63 of the PS Act.

495                    This item also introduces new sections 40 and 40A.

Centrelink Programs

496                    The new subsection 40(1) defines the term "centrelink programs" for the purposes of a law of the Commonwealth as being - subject to subsection (2):

(a)                services, benefits, programs or facilities, where:

(i)      the Chief Executive Centrelink is; or

(ii)     Departmental employees are;

involved in the provision of the services, benefits, programs or facilities; or

(b)                services, benefits, programs or facilities specified in the regulations.

497                    The reference in paragraph (a) of subsection 40(1) to a person being "involved in" the provision of services benefits, programs or facilities is explained by subsection (3).

498                    The definition of "centrelink programs" in subsection (1) is qualified by subsection (2) which excludes from "centrelink programs":

(a)                medicare programs; 

(b)                services, benefits, programs or facilities that are provided for under:

(i)      the Child Support (Assessment) Act 1989 ; or

(ii)     the Child Support (Registration and Collection) Act 1988 .

499                    The term "medicare program" is defined by a new definition being inserted in section 3 by this Bill by reference to the meaning of that term as in s41G of the Human Services (Medicare) Act 1973 as amended by Schedule 1 of this Bill.

500                    The definition of "centrelink program" inserted by s40 is expressed to be a definition for laws of the Commonwealth generally.  This term is used in this Bill 's amendments of provisions of other Acts including provisions dealing with protected information and parties to Court and Tribunal proceedings.

Multiple secrecy provisions

501                    This item also inserts a new section 40A dealing with multiple secrecy provisions.  The intent of section 40A is to clarify and simplify the circumstances in which the Secretary, the Chief Executive Centrelink or a Departmental employee may disclose, use or record information where the secrecy provisions of more than one Act apply in relation to specific information about a specific person, for example, a person’s address.  The provision makes clear that, if a person has provided the same specific personal information to the Department of Human Services for a number of different programs to which different secrecy provisions apply, the specific information can be dealt with in accordance with any of the applicable secrecy provisions.   Thus, for example, if a person provides the Department of Human Services with their address for the purposes of program “A” and program “B” and the secrecy provisions covering program “A” permit the disclosure of the person’s address in specific circumstances, the information can be disclosed in those circumstances even if the disclosure is not authorised  under the secrecy provisions covering program “B”.  This is intended to replicate, as far as possible, the current situation with the use and disclosure of information by the Department of Human Services, Medicare Australia and Centrelink.  For example, where, a person has provided their address to both Medicare Australia and Centrelink, in some specific situations it is possible that Medicare Australia may be able to disclose the address to another person, but Centrelink may be prevented by secrecy provisions from disclosing the same information.

502                    Section 40A applies to actions of the Chief Executive Centrelink or a Departmental employee of disclosure, use or the making of a record of, information.  Subsection (3) defines "disclose" to mean disclose, divulge or communicate.

503                    Subsection 40A(2) provides that if:

(a)                particular information (the "protected information") is subject to a regulatory regime under a "designated program Act" (the "first program Act"); and

(b)                the protected information is also subject to a regulatory regime under another designated program Act (the "second program Act"); and

(c)                particular action can be taken in relation to the protected information in particular circumstances without contravening the second program Act;

then the taking of the action (disclosure, use or making a record) in those circumstances is taken not to contravene the first program Act.  The section will only apply if the same specific information about a person is held by the Department of Human Services under two or more programs covered by different secrecy provisions.

504                         The "designated program Acts" are the Acts listed in subsection (3).  These Acts are Acts which have provisions dealing with aspects of disclosure, use or the making of a record of, information which affect services benefits, programs or facilities delivered by the Human Service portfolio agencies. 

505                    Additional Acts may become “designated program Acts” by being prescribed in regulations. This power to prescribe additional Acts is important to ensure that the multiple secrecy provision remains current when new functions which require access to, and use of, information that is protected by legislation, are conferred on the Department of Human Services.

Part 2—Transitional provisions

506                    The Items in Part 2 deal with transitional matters arising from the amendments in Part 1 including matters arising from the abolition of the statutory office of Chief Executive of Centrelink and from the abolition of Centrelink. 

507                    The provisions deal with matters internal to the Commonwealth in relation to financial accountability and transfer of employees from Centrelink to the Department.  The general approach of these provisions is to:

·            attribute things done by, or in relation to, the Chief Executive Officer as agency head to the Secretary;

·            give effect to documents referring to the Chief Executive Officer as agency head as if those references were references to the Secretary;

·            give effect to documents referring to Centrelink as if those references were references to the Department.

508                    The transitional provisions also deal with the impact of the integration on persons and entities outside the Human Services portfolio.  These transitional provisions are intended to ensure that the integration of Centrelink into the Department does not disrupt the delivery of services and does not have any adverse impact on the rights of persons or entities who have existing relationships with, or who are part way through, applications or transactions involving the Chief Executive Officer or Centrelink.  The general approach of these transitional provisions is to:

·            attribute acts done by, or in relation to, the Chief Executive Officer to the Chief Executive Centrelink;

·            attribute acts done by, or in relation to, Centrelink to the Department;

·            give effect to documents referring to the Chief Executive Officer as if those references were references to the Chief Executive Centrelink;

·            give effect to documents referring to Centrelink as if those references were references to the Department.

509                    The transitional provisions also give the Minister power to modify the operation of the general provisions by a declaration to:

·            prevent particular transitional provisions applying to particular acts or documents;

·            attribute acts to the Secretary or the Chief Executive Medicare instead of to the Chief Executive Centrelink; or

·            attribute acts to the Chief Executive Centrelink or the Chief Executive Medicare instead of to the Secretary.

510                    The purpose of giving the Minister the power to make these declarations is to:

·            allow the Minister power to modify the operation of the transitional provisions to deal with what otherwise could be anomalous or inappropriate outcomes;

·            give the Minister flexibility to modify the operation of the transitional provisions to support and facilitate the integration of service delivery in the Department.

511                    Any modification of the general transitional provisions by Ministerial declaration must be done by legislative instrument and is, as such, subject to tabling and scrutiny.

512                    The transitional provisions also deal with proceedings pending in Courts and Tribunals where,

·            the Chief Executive is a party;

·            Centrelink is a party;

·            the Commonwealth is a party described as the Commonwealth represented by the Chief Executive Officer;

·            the Commonwealth is a party described as the Commonwealth represented by Centrelink. 

513                    These provisions are drafted so as not to impinge on the powers of the Courts and tribunals to make such orders as they consider appropriate in relation to substitution of parties and/or changes in description of parties. 

Division 1 - Introduction

Item 49  Definitions

514                    This item inserts definitions that apply in Part 2.  The significance of each of these definitions is explained below in respect of the items in which the definition is first used. 

Division 2 - Acts of the CEO etc

Item 50  Transitional—acts of the CEO under financial management and public service legislation etc.

515                    Subitem 50(1) identifies particular acts done by or in relation to the "Chief Executive Officer" before the "transition time" to which item 50 applies.

516                    The term "transition time" is defined by item 49 as meaning "the commencement of this Schedule".  Under clause 2 of the Bill, this Schedule (Schedule 1) commences 1 July 2011.

517                    The term "Chief Executive Officer" is defined by item 49 as having the same meaning as the term "Chief Executive Officer" within the meaning of the Commonwealth Services Delivery Agency Act 1997 as in force immediately before the transition time.

518                    The acts to which this item applies are acts done by the Chief Executive Officer done in relation to the Chief Executive Officer under or for the purposes of, any of:

(a)                the Financial Management and Accountability Act 1997 (FMA Act); or

(b)                regulations under the FMA Act (FMA Regs); or

(c)                Finance Minister’s Orders under the FMA Act; or

(d)               the Public Service Act 1999 (PS Act); or

(e)                regulations under the PS Act (PS Act Regs).

519                    Under subitem 50(2) after the transition time, an act to which item 50 applies has effect:

(a)                if done by the Chief Executive Officer before the transition time as if it had been done by the Secretary; and

(b)                if done in relation to the Chief Executive Officer, as if it had been done in relation to the Secretary.

520                    Item 49 defines the term "the Secretary" as meaning the Secretary of the Department.

521                    Subitem 50(3) provides that the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act. 

522                    Subitem 50(4) authorises the Minister when making a declaration under subitem (3) in relation to a specified act to make a declaration by legislative instrument:

(a)                for an act done by the Chief Executive Officer before the transition, that the act has effect after the transition time as if it had been done by the Chief Executive Centrelink;

(b)                for an act done in relation to the Chief Executive Officer before the transition time, that the act has effect after the transition time as if it had been in relation to the Chief Executive Centrelink.

523                    Subitems (3) and (4) enable the Minister to make declarations to adjust the general effect of subitem 87B(2) where appropriate to avoid anomalous or inappropriate outcomes.

524                    Subitem 50(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time. 

525                    Subitem 50(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 51  Transitional—acts of the CEO under binding non-employment agreements etc.

526                    This item deals with the acts done before the transition time by, or in relation to, the Chief Executive Officer under a binding non-employment agreement.  The term "binding non-employment agreement" is defined by item 49 as meaning an agreement:

(a)                that is legally enforceable; and

(b)                to which the Commonwealth or the Chief Executive Officer is a party; and

(c)                that does not contain any or all of the terms and conditions of employment of one or more employees; and

(d)               that was entered into before the transition time.

527                    Under subitem 51(2) after transition time an act which is covered by this item has effect: 

(a)                if done by the Chief Executive Officer before the transition time as if it had been done by the Secretary; and

(b)                if done in relation to the Chief Executive Officer, as if it had been done in relation to the Secretary.

528                    Under subitem 51(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.

529                    Subitem 51(4) authorises the Minister when making a declaration under subitem (3) in relation to a specified act to make a declaration by legislative instrument:

(a)                for an act done by the Chief Executive Officer before the transition, that the act has effect after the transition time as if it had been done by:

(i)      the Chief Executive Centrelink; or

(ii)     the Chief Executive Medicare.

(b)                for an act done in relation to the Chief Executive Officer before the transition time, that the act has effect after the transition time as if it had been done in relation to:

(i)      the Chief Executive Centrelink; or

(ii)     the Chief Executive Medicare.

530                    Item 49 defines the term "Chief Executive Centrelink" as having the same meaning as in the Human Services (Centrelink) Act 1997 as amended by this Schedule (Schedule 1) The meaning of the term under the amended Act is set out in item 3A by reference to new section 4 inserted by this Bill.

531                    Item 49 defines the term "Chief Executive Medicare" as having the same meaning as in the Human Services (Medicare) Act 1973 as amended by Schedule 2.

532                    Subitem 51(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time. 

533                    Subitem 50(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 52  Transitional—acts of the CEO under non-binding governmental agreements etc.

534                    This item deals with acts done by, or in relation to, the Chief Executive Officer before the transition time under, or for the purposes of, a "non-binding governmental agreement". 

535                    The term "non-binding governmental agreement" is defined by item 49 as meaning an agreement between

(a)                between Centrelink and a government body; and

(b)                that is not legally enforceable; and

(c)                that was entered into before the transition time.

536                    The term "Centrelink" is defined by item 49 as meaning the Commonwealth Services Delivery Agency (within the meaning of the Commonwealth Services Delivery Agency Act 1997 as in force immediately before the transition time).  Under section 35 of the CSDA Act in force before transition time, the Commonwealth Services Delivery Agency comprises the Chief Executive Officer and the employees.  Accordingly, item 52 applies in relation to non-binding governmental agreements whether entered into by the CEO or by the staff of Centrelink.

537                    The term "government body" is defined by item 49 as a department of the Commonwealth, a State or a Territory or an agency, authority or instrumentality of the Commonwealth, a State or a Territory.

538                    The non-binding agreements which are subject to item 52 include service arrangements entered into in accordance with section 7 of the CSDA Act with the principal officers of Commonwealth authorities and agreements about the performance of functions entered into under section 8A of the CSDA Act before the amendment of those sections by this Bill.

539                    Under subitem 52(2) after transition time, if the act was done by the Chief Executive Officer, it has effect as if it had been done by the Chief Executive Centrelink and, if done in relation to the Chief Executive Officer, it has effect as if it had been done in relation to the Chief Executive Centrelink.

540                    Under subitem 52(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.

541                    Subitem 52(4) authorises the Minister when making a declaration under subitem (3) in relation to a specified act to make any of the following declarations by legislative instrument:

(a)                for an act done by the Chief Executive Officer before the transition, that the act has effect after the transition time as if it had been done by:

(i)      the Chief Executive Centrelink; or

(ii)     the Chief Executive Medicare.

(b)                for an act done in relation to the Chief Executive Officer before the transition time, that the act has effect after the transition time as if it had been done in relation to:

(i)      the Chief Executive Centrelink; or

(ii)     the Chief Executive Medicare.

542                    The purpose of giving the Minister power to make declarations for acts done by or in relation to the Chief Executive of Centrelink under non-binding governmental agreements to be taken to have been done by or in relation to the Chief Executive Medicare (as well as by or in relation to the Chief Executive Centrelink) is to allow flexibility in the integration of delivery of services.

543                    Subitem 52(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time. 

544                    Subitem 52(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 53  Transitional—other acts of the CEO

545                    This item deals with the transition in relation to an act which was done by or in relation to the Chief Executive Officer before transition and to which none of items 50, 51 or 52 applies.

546                    Under subitem 53(2) after transition time, if the act was done by the Chief Executive Officer, it has effect as if it had been done by the Chief Executive Centrelink and, if done in relation to the Chief Executive Officer, it has effect as if it had been done in relation to the Chief Executive Centrelink.

547                    Under subitem 53(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.

548                    Subitem 53(4) authorises the Minister when making a declaration under subitem (3) in relation to a specified act to make any of the following declarations by legislative instrument:

(a)                for an act done by the Chief Executive Officer before the transition, that the act has effect after the transition time as if it had been done by:

(i)      the Secretary; or

(ii)     the Chief Executive Medicare.

(b)                for an act done in relation to the Chief Executive Officer before the transition time, that the act has effect after the transition time as if it had been done in relation to:

(i)      the Secretary; or

(ii)     the Chief Executive Medicare.

549                    Subitem 53(5) provides that a declaration under subitem (3) or (4) before or after the transition time takes effect at the transition time. 

550                    Subitem 53(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 54  Transitional—documents lodged with Centrelink

551                    The item applies to a document that was given to, or lodged with, Centrelink before the transition time.  In accordance with section 25 of the AIA, the reference to documents generally includes documents lodged electronically.

552                    Under subitem 55(2) any such document has effect as if it had been given to, or lodged with the Department.

553                    Under subitem 55(3) the Minister may, by legislative instrument, declare that subitem (2) does not apply in relation to a specified document. 

554                    Under subitem 55(4) at the same as making a declaration under subitem (3) the Minister may also declare by legislative instrument that after transition time the document has effect as if given to or lodged with the Chief Executive Centrelink or as if given to or lodged with the Chief Executive Medicare.

555                    Subitems 55(3) and (4) are intended to give the Minister power to adapt the general operation of subitem 55(2) to avoid anomalous or inappropriate outcomes in relation to particular categories of documents.

556                    Subitem 55(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time. 

557                    Subitem 55(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 55  Transitional—other acts done in relation to Centrelink etc.

558                    This item applies to an act done in relation Centrelink before the transition time which is not covered by item 54.

559                    Under subitem 55(2) the act has effect as if it had done in relation to the Department.

560                    Under subitem 55(3), the Minister may, by legislative instrument, declare that subitem (2) does not apply in relation to a specified act.  Under subitem 55(4) when the Minister makes a declaration under subitem (3) in relation to a specified act, the Minister may at the same time, by legislative instrument, make a declaration that the act has effect, after the transition time, as if it had been done in relation to the Chief Executive Centrelink or as if it had been done in relation to the Chief Executive Medicare.

561                    Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 55(2) to avoid anomalous or inappropriate outcomes.

562                    Subitem 55(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.

563                    Subitem 55(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 56  Transitional—acts done by employees of Centrelink under Commonwealth laws etc.

564                    This item applies to an act done by, or in relation to, an employee of Medicare Australia before the transition time under a law of the Commonwealth.

565                    Under subitem 56(2) such an act has effect after transition time as if it had been done by, or in relation to, a Departmental employee.  "Departmental employee" is defined in item 49 to have the same meaning as in the Human Services (Centrelink) Act 1997 as amended by this Schedule. 

566                    Under subitem 56(3) the Minister may by legislative instrument declare that subitem 56(2) does not apply to a specified act.

567                    Subitem 56(4) provides that a declaration made under subitem (3) after the transition time takes effect at the transition time.

568                    Subitem 56(5) provides that a declaration under subitem (3) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

Item 57  Variation or revocation of instruments etc.

569                    This item repeals the definition of "CEO" by reference to the CSDA Act because this Bill abolishes that position.  The term will no longer be used in the Act.

Item 57A Division 2 of Part 2 of Schedule 2 does not apply to making of lapsed instruments

570                    This item ensures that certain instruments made before the transition time under provisions of the Commonwealth Services Delivery Agency Act 1997 that have been repealed by the Bill are not continued by the transitional provisions.

571                    In particular, the following instruments will not be continued by a transitional provision:

(a)                service arrangements agreed between the Chief Executive Officer and the principal officer of a Commonwealth authority under section 7(1);

(b)                directions conferring functions on the Chief Executive Officer under section 8(1)(c);

(c)                Ministerial directions to the Chief Executive Officer about the exercise or performance of powers or functions under section 9;

(d)               requests from the Minister for information from the Chief Executive Officer under section 10; and

(e)                instruments made under Division 2 of Part 3 of the Commonwealth Services Delivery Agency Act 1997 (such as instruments appointing the Chief Executive Officer, granting a leave of absence and setting out terms and conditions).

572                    Item 57A is included for the avoidance of doubt.

Division 3 - Translation of references in documents

Item 58  Transitional—translation of references in binding non-employment agreements

573                    This item applies to any binding non-employment agreement which was in force immediately before the transition time.  Under subitem 58(2) after transition time the agreement has effect as if:

(a)                a reference (if any) in the agreement to the Commonwealth of Australia represented by the Chief Executive Officer of Centrelink were a reference to the Commonwealth of Australia represented by the Department; and

(b)                a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Secretary; and

(c)                a reference (if any) in the agreement to Centrelink were a reference to the Department.

These provisions allow these agreements to continue to operate effectively despite the abolition of the statutory office of the Chief Executive Officer of Centrelink and the integration of Centrelink into the Department. 

574                    Under subitem 58(3) the Minister may, by legislative instrument, declare that any or all of the paragraphs of subitem (2) do not apply in relation to a specified agreement. 

575                    Under subitem 58(4) when the Minister makes a declaration under subitem (3) in relation to a specified agreement, the Minister may at the same time, by legislative instrument, make a declaration that after transition time, the agreement has effect as if a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Chief Executive Centrelink or to the Chief Executive Medicare.

576                    Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 58(2) to avoid anomalous or inappropriate outcomes. 

577                    Subitem 58(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time. 

578                    Subitem 58(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

579                    For the avoidance of doubt, subitem 58(7) provides that this item does not, by implication, prevent the agreement from being varied, amended or revoked after the transition time.

Item 59  Transitional—translation of references in non-binding governmental agreements

580                    This item applies to any non-binding governmental agreement which was in force immediately before the transition time.  Under subitem 59(2) after transition time the agreement has effect as if:

(a)                a reference (if any) in the agreement to the Commonwealth of Australia represented by the Chief Executive Officer were a reference to the Commonwealth of Australia represented by the Department; and

(b)                a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Chief Executive Centrelink; and

(c)                a reference (if any) in the agreement to Centrelink were a reference to the Department.

581                    These changes allow these agreements to continue to operate effectively despite the abolition of the statutory office of the Chief Executive Officer of Centrelink and the integration of Centrelink into the Department .

582                    Under subitem 59(3) the Minister may, by legislative instrument, make a declaration that any of the paragraphs of subitem (2) do not apply to a specified agreement.  Under subitem 59(4) when the Minister makes a declaration under subitem (3) in relation to a specified agreement, the Minister may at the same time, by legislative instrument, make a declaration that after transition time, the agreement has effect as if a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Secretary or to the Chief Executive Medicare.

583                    Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 59(2) to avoid anomalous or inappropriate outcomes.

584                    Subitem 59(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time. 

585                    Subitem 59(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

586                    For the avoidance of doubt, subitem 59(7) provides that this item does not, by implication, prevent the agreement from being varied, amended or revoked after the transition time.

Item 60  Transitional—translation of references in other instruments

587                    This item applies to an instrument which is not covered by item 58 or by item 59 and which was in force immediately before the transition time.  In this item, the definition of instrument includes:

(a)     a contract, deed, undertaking or agreement; and

(b)     a notice, authority, order or instruction; and

(c)     an instrument made under an Act or under regulations;

588                    but does not include an Act.  This is a broad definition but under subitem 60(2), item 60 only applies to an instrument which is not covered by item 58 or item 59.

589                    Under subitem 60(2) after transition time the instrument has effect as if a reference (if any) in the instrument to Chief Executive Officer were a reference to the Chief Executive Centrelink and as if a reference (if any) to Centrelink were a reference to the Department.  These changes allow such instruments to continue to operate despite the abolition of the office of Chief Executive Officer of Centrelink and the integration of Centrelink into the Department.

590                    Under subitem 60(3) the Minister may, by legislative instrument declare that subitem (2)'s provisions in relation to references to Chief Executive Officer and Centrelink do not apply in relation to a specified instrument. 

591                    Under subitem 60(4) when the Minister makes a declaration under subitem (3) in relation to a specified instrument, the Minister may at the same time, by legislative instrument, make a declaration that after transition time, the instrument has effect as if a reference (if any) in the instrument to the Chief Executive Officer were a reference to the Secretary or to the Chief Executive Medicare.

592                    Subitem 60(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time. 

593                    Subitem 60(6) provides that a declaration under subitem (3) or (4) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

594                    For the avoidance of doubt, subitem 60(7) provides that this item does not, by implication, prevent the instrument from being varied, amended or revoked after the transition time.

Item 60A Division 3 of Part 2 of Schedule 2 does not apply to lapsed instruments

595                    This item applies to certain instruments made before the transition time under provisions of the Commonwealth Services Delivery Agency Act 1997 that have been repealed by the Bill . These instruments are not continued by the transitional provisions (refer to paragraphs 570 to 572 ) and accordingly it is not necessary to translate the references in these lapsed instruments to new references.

596                    Item 60A is included for the avoidance of doubt.

Division 3A - Agreements about the performance of the CEO’s functions

Item 60B Transitional - agreements with Secretaries about the performance of the CEO’s functions

597                    This item applies to agreements that were made under section 8A of the Commonwealth Services Delivery Agency Act 1997 before the transition time between the Chief Executive Officer and the Secretary of a Department (other than the Human Services Department) that were in force immediately before the transition time.

598                    Subitem 60B(2) continues these agreements as if they had been made under section 7A of the Human Services (Centrelink) Act 1997, as amended by this Schedule and as if the agreement had been made between the Secretary of the Human Services Department and the Secretary of the other Department. In addition, where there are references in the agreement to the functions of the Chief Executive Officer, subitem 60B(2) translates those references to be references to the functions of the Chief Executive Medicare.

599                    Under subitem 60B(3) the Minister may, by legislative instrument declare that subitem (2)'s provisions do not apply in relation to a specified agreement. 

600                    Subitem 60B(4) provides that a declaration made under subitem (3) after the transition time takes effect at the transition time. 

601                    Subitem 60B(5) provides that a declaration under subitem (3) before the transition time, in accordance with section 4 of the AIA, takes effect at the transition time. 

602                    For the avoidance of doubt, subitem 60B(6) provides that this item does not, by implication, prevent the instrument from being varied, amended or revoked after the transition time.

603                    Subitem 60B(7) sets out three definitions.

(a)                Function is defined to include power.

(b)                Human Services Department is defined as the Department administered by the Human Services Minister.

(c)                Human Services Minister is defined as the Minister administering the Human Services (Centrelink) Act 1997 as amended by this Schedule.

Item 60C Transitional - other agreements about the performance of the CEO’s functions

604                    This item applies to an agreement:

(a)                that was made under section 8A of the Commonwealth Services Delivery Agency Act 1997 as in force before the transition time;

(b)                that was in force immediately before the transition time; and

(c)                where section 60B(2) does not apply to the agreement.

605                    Subitem 60C(2) provides that agreements covered by item 60C cease to have effect at the transition time.

606                    Agreements that are intended to fall within item 60C include agreements between the Chief Executive Officer and a Minister or between the Chief Executive Officer and the head of a statutory agency. To the extent that any of these types of agreements need to be continued, they will be remade at or after the transition time.

Item 60D Division 3A prevails over Divisions 2 and 3

607                    Item 60D provides that Divisions 2 and 3 of Part 2 (Transitional Provisions) of Schedule 2 (Amendment of the Commonwealth Services Delivery Agency Act 1997 have no effect to the extent that they are inconsistent with Division 3A.

Division 4 - Proceedings in courts and tribunals

Item 61  Transitional—administrative law proceedings

608                    This item applies to proceedings to which the Chief Executive Officer is a party and which are pending immediately before the transition time in: 

(c)     in the Administrative Appeals Tribunal; or

(d)     in the Social Security Appeals Tribunal; or

(e)     in a court under the Administrative Decisions (Judicial Review) Act 1977;

(f)     in a court or tribunal in relation to the review (otherwise than under the Administrative Decisions (Judicial Review) Act 1977 ) of:

(i)      a decision; or

(ii)     conduct engaged in for the purpose of making a decision; or

(iii)    a failure to make a decision.

609                    Subitem (2) substitutes the Chief Executive Centrelink as a party to the proceeding.  This provision enables the effective continuation of the pending proceedings despite the abolition of the position of Chief Executive Officer. 

610                    Subitem (3) provides that where the court or tribunal considers it to be in the interests of the administration of justice to do so, the court or tribunal may by order determine that subitem (2) does not apply in relation to the proceedings and that a person specified in the order be substituted as a party to the proceedings. 

Item 62  Transitional—other proceedings in courts or tribunals

611                    This item applies to proceedings pending immediately before the transition time in which a party to the proceedings is described as the Commonwealth represented by the Chief Executive Officer.  Subitem (2) provides that after transition time, the party is to be described as the Commonwealth represented by the Chief Executive Centrelink.

612                    Subitem (3) provides that if the court or tribunal considers it is in the interests of justice to do so, the court or tribunal may order that subitem (2) does not apply and order how the party is to be described.

Item 63  Transitional—other proceedings to which the CEO or Centrelink is a party

613                    This item applies to proceedings pending immediately before the transition time which are not subject to item 61 and in which a party to the proceedings is the Chief Executive Officer or Centrelink. 

614                    Subitem (2) gives the court or tribunal power to order that after transition time another person be substituted as a party to the proceedings.

Item 64  Transitional—other proceedings to which the Commonwealth represented by Centrelink is a party

615                    This item applies to proceedings pending immediately before the transition time if a party to the proceedings is described as the Commonwealth of Australia represented by Centrelink.  Subitem (2) gives the court or tribunal power to order that the party is to be described in the manner specified in the order.

Item 65  Other powers of courts and tribunals unaffected

616                    This item provides that the powers conferred on a court or tribunal under this Division are in addition to, and not instead of, any other powers of the court or tribunal.

Division 5 - Employees

617                    The Items in Division 5 deal with transitional matters arising from the movement of employees from Centrelink to the Department. It is intended that a single enterprise agreement will be negotiated for all Department employees to take effect from the transition date. If a single enterprise agreement is not successfully negotiated before the transition date, the Centrelink Agreement 2009-2011 will cover the Department and the transferring Centrelink employee in relation to Department work until a single enterprise agreement is successfully negotiated.

618                    If a person becomes a new employee, as defined by subitem 67(6), before a single enterprise agreement is successfully negotiated, the Secretary may determine that the Centrelink Agreement 2009-2011 or the Medicare Australia Collective Agreement 2008-2011 or the Medicare Australia (Medical Officers) Collective Agreement 2008-2011 applies to the new employee until a single enterprise agreement is successfully negotiated. 

Item 66  Transitional—movement of employees from Centrelink to the Department

619                    This item states that the movement of APS employees from Centrelink to the Department is to be in accordance with a determination under the machinery of government provision in section 72 of the PS Act.

Item 67  Transitional—employment agreements and determinations

620                    This item deals with the transitional arrangements for transferring employees.  Subitem 67(1) defines a "transferring employee" as a person who was an APS employee immediately before the transition time and is covered by a machinery of government determination under section 72 of the PS Act which causes the person at transition time to become an employee in the Department. 

621                    If a person is a transferring employee (other than an SES employee) and immediately before the transition time the person's employment in Centrelink was covered by a "designated agreement", then the detailed provisions in subitem (2) dealing with the operation of the designated agreement from the transition time apply in relation to the transferring employee's work in the Department. 

622                    Subitem (11) defines "designated agreement" as the Centrelink Agreement 2009-2011 or an enterprise agreement (as defined under the Fair Work Act 2009 ).

Transferring non-SES employees covered by a designated agreement

623                    If subitem (2) applies then:

(a)                Under paragraph (c) the designated agreement (as in force immediately before the transition time) covers the Commonwealth and the transferring employee in relation to the Department work (as defined in subitem (11) to mean work performed after transition by the employee in the Department); and

(b)                Under paragraph (d) no other enterprise agreement, modern award or award-based transitional instrument covers the transferring employee while the designated agreement covers the Commonwealth and the transferring employee.  The term "award-based transitional instrument" is defined by subitem (11) as having the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .  Under subitem (11) the term "modern award" has the same meaning as in the Fair Work Act.

(c)                Under paragraph (e) the designated agreement has effect after the transition time as if it had been made with the Secretary on behalf of the Commonwealth.

(d)               Under paragraph (f) if the transferring employee becomes an SES employee after the transition time - paragraphs (c), (d) and (e) cease to apply in relation to the transferring employee;  and

(e)                Under paragraph (g), if an enterprise agreement is made after the transition time by the Secretary on behalf of the Commonwealth - and apart from paragraphs (c), (d) and (e), the enterprise agreement covers the Commonwealth and the transferring employee, then paragraphs (c), (d) and (e) cease to apply to the transferring employee when the enterprise agreement commences.  (Subitem (8) provides that paragraph (g) has effect subject to section 58 of the Fair Work Act.  Section 58 of the Fair Work Act generally requires that only one enterprise agreement can apply to an employee at a particular time.)

Transferring employees covered by an AWA or pre-reform AWA

624                    Under subitem (3) if a transferring employee's employment in Centrelink was covered immediately before the transition time by an AWA or pre-reform AWA, then that AWA or pre-reform AWA, has effect after the transition time, in relation to the transferring employee’s Department work, as if it had been made with the Secretary on behalf of the Commonwealth.  This provision is consequential on the abolition of Centrelink. 

625                    Under subitem (11) for item 67:

(a)                the term AWA has the same meaning as in Schedule 7A to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act ; and

(b)                the term pre-reform AWA has the same meaning as in Schedule 7 to the Workplace Relations Act   as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act .

626                    Subitem (3) in effect preserves the transferring employee's position under the AWA or pre-reform AWA after transition.  However, the coverage of the employee under the AWA or pre-reform AWA after transition may cease in accordance with subitem (4). 

627                    Subitem (4) sets out procedures for shifting transferring employees covered by an AWA or pre-reform AWA to coverage after transition by a designated agreement.  Subitem (4) provides for that shift to occur during a period (the cessation time ):

(a)                beginning at transition time; and

(b)                ending immediately before the commencement of an enterprise agreement made after the transition time by the Secretary on behalf of the Commonwealth, where (apart from the AWA or pre-reform AWA) the enterprise agreement covers the Commonwealth and the transferring employee in relation to Department work. 

628                    Under paragraphs (d), (e) and (f) of subitem (4) if during the cessation time there is a designated agreement covering the Commonwealth under subitem (2) which was made before the transition time, then the Secretary, may by written notice to the transferring employee, determine that the designated agreement is applicable to the transferring employee for the purposes of subitem (4).  The notice may be given by the Secretary before, or within 14 days after, the cessation time and takes effect from the cessation time.

629                    (Subitem (10) states that a determination by the Secretary under these provisions is not a legislative instrument.  The instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers.)

Transferring employees whose employment is covered by a determination under subsection 24(1) of the Public Service Act

630                    Subitem (5) applies if a person is a transferring employee; and immediately before the transition time, the person’s employment in Centrelink was covered by a determination under subsection 24(1) of the PS Act. 

631                    Under subsection 24(1) of the PS Act an Agency Head may make determinations of remuneration and other terms and conditions of employees.  Under subsection 24(2), the power in subsection (1) may not be used to reduce the benefit to an employee of a term or condition under a fair work instrument or a WR Act transitional instrument.

632                    If subitem (5) applies, then the determination (to the extent to which it relates to the person) has effect after the transition time, in relation to the transferring employee’s Department work, as if the determination had been made by the Secretary; and the determination were applicable to the person’s employment in the Department.

633                    Paragraph (d) of subitem (5) declares that the effect which subitem (5) gives to such determinations does not prevent the variation or revocation of the determination.

634                    Subitem (5) is intended to preserve the benefit of any subsection 24(1) PS Act determinations which have been made in relation to transferring employees subject to the possibility of variation or revocation of any such determinations in accordance with the PS Act.

New employees

635                    Subitem (7) applies in relation to "new employees" defined in subitem (6) as a person who is an APS employee (other than an SES employee) in the Department and who is not a transferring employee (as defined in subitem (1)).  If:

(a)                a designated agreement covers the Commonwealth because of subitem (2); and

(b)                the designated agreement was made before the transition time; and

(c)                after the transition time, a person becomes a new employee; and

then under paragraph (d) the Secretary, may by written notice given to the new employee, determine that the designated agreement is applicable to the new employee for the purposes of this subitem.  The notice may be given by the Secretary before, or within 14 days after, the cessation time and takes effect from the cessation time.

636                    Subitem (10) states that a determination by the Secretary under these provisions is not a legislative instrument.  The instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers.

Section 58 of the Fair Work Act 2009

637                    This provision qualifies the operation of subitems (2), (4) and (7) by declaring that any shift to an enterprise is subject to section 58 of the Fair Work Act which generally requires that only one enterprise agreement can apply to an employee at a particular time.

Delegation

638                    Subitem (9) authorises the Secretary to delegate the power to make determinations by giving notices under subitems (4) and (7) to an SES employee in the Department.  It is appropriate for the Secretary to be able to delegate this power given the size of the workforce involved.

Legislative Instrument

639                    Subitem (10) declares that the determinations which the Secretary is authorised to give under subitems (4) and (7) are not legislative instruments.  These instruments would not be legislative instruments within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers.

Definitions

640                    Subitem (11) sets out the definition of terms used in item 67.  Each of these definitions has been referred to above in the explanation of the first provision of item 67 to use the defined term. 

Item 68  This Division prevails over Divisions 2 and 3

641                    This item provides that Division 2 and 3 have no effect to the extent if any to which they are inconsistent with this Division.

Division 6 - Miscellaneous

Item 69  Transitional—transfer of appropriated money

642                    This item provides that in Appropriation Acts for the financial year beginning 1 July 2010 or earlier financial years references to Centrelink are to be read as references to the Department.

643                    This is consistent with the integration of Centrelink into the Department.

Item 70  Transitional—responsibility for Commonwealth resources

644                    This item transfers to the Secretary at transition time responsibility under the Financial Management and Accountability Act 1997 for any Commonwealth resources for which the Chief Executive Officer was responsible immediately before the transition time.

Item 71  Transitional—final annual report

645                    This provision provides that despite amendments of section 40 of the CSDA Act made by this Schedule, that section continues to apply, in relation to the report for the financial year beginning on 1 July 2010, as if those amendments had not been made. 

646                    However, the reporting obligation is imposed on the Secretary instead of the Chief Executive Officer.  It is intended that the Secretary could provide a single consolidated annual report for the financial year beginning 1 July 2010 to meet:

·            the Secretary's obligation to provide the report required by item 71;

·            the Secretary's obligation to provide a similar report in relation to the performance of the functions and powers of the Chief Executive Officer of Medicare Australia and on the operations of Medicare Australia for the financial year beginning 1 July 2010 in accordance with transitional provisions in relation to Medicare Australia being introduced by this Bill; and

·            the Secretary's direct obligations to provide an annual report in accordance with section 63 of the PS Act in relation to the Department for the financial year beginning 1 July 2010.

Item 72  Transitional—other reporting requirements

647                    This item imposes on the Secretary any obligation under a law of the Commonwealth which, if this Schedule had not been enacted, would have applied to the Chief Executive after the transition time to prepare a report to give to another person in relation to Centrelink relating either to the financial year beginning 1 July 2010 or to a period that ends on or before 30 June 2011.

Item  73  Transitional—transfer of records to the Department

648                    This item transfers any records or documents that were in possession of the Chief Executive Officer or Centrelink immediately before the transition time to the Department.

Item 74  Transitional—subsections 8(10) to (14) of the Human Services (Centrelink) Act 1997

649                    Subitem (1) of this item provides that for the purposes of subsections 8(10) to (14) of the Human Services (Centrelink) Act 1973 as amended by this Schedule, it is immaterial whether regulations mentioned in paragraph 8(10)(b) of that Act were made before, at or after the transition time.

650                    Subitems (2) and (3) have been included to avoid any doubt about the validity of directions under section 8(1)(c) of the Medicare Australia Act 1973 made before the transition time. Section 8(1)(c) is repealed by item 27 (refer to paragraph 424 of this explanatory memorandum).

Item 75  Transitional - regulations setting out protected symbol

651                    Item 75 applies to regulations that were made for the purposes of the definition of “protected symbol”in subsection 38(4) of the Commonwealth Services Delivery Act 1997 and were in force immediately before the transition time. Under subsection (2), the regulations have effect after the transition time as if they had been made for the purposes of subsection 38(4)(a)(ii) of the Human Services (Centrelink) Act 1997.

652                       Item 75 has the effect that any symbols that are currently protected will continue to be protected after the transition time.

Schedule 3— Amendment of the Child Support (Registration and Collection) Act 1988

Child Support (Registration and Collection) Act 1988

Item 1  Subsection 4(1) (definition of CEO )

653                    This item repeals the definition of "Chief Executive Officer" by reference to the CSDA Act because this Bill abolishes that position.  The term will no longer be used in the Act.

Item 2  Subsection 4(1)

654                    This item inserts a new definition of Chief Executive Centrelink by reference to the Human Services (Centrelink) Act 1997 as amended and renamed by Schedule 2 of this Bill.

655                    This repeal is consequential on the creation by this Bill of a new statutory office of Chief Executive Centrelink.

Item 3  Subsection 4(1)

656                    This item inserts a new definition of Chief Executive Medicare by reference to the Human Services (Medicare) Act 1973 as amended and renamed by Schedule 1 of this Bill.

657                    This repeal is consequential on the creation by this Bill of a new statutory office of Chief Executive Medicare.

Item 4  Subsection 4(1) (definition of employee )

658                    This item amends this definition by deleting the first paragraph defining the term "employee" when used in the Act in relation to the Commonwealth Services Delivery Agency (Centrelink).  This deletion is consequential on the abolition of Centrelink by this Bill.

Item 5  Subsection 4(1)

659                    This item inserts a definition of the term "medicare program" by reference to the Human Services (Medicare) Act 1973 as amended and renamed by this Bill. 

Item 6  Subsection 4(1) (definition of service arrangements )

660                    This item repeals the definition which refers to the meaning of that term in the CSDA Act.  This repeal is consequential on this Bill's repeal of that term in that Act.

661                    The term will no longer be used in the Act.

Item 7  Subsection 4(1) (definition of Services Delivery Agency )

662                    This item repeals the definition which referred to the Commonwealth Services Delivery Agency established by the CSDA Act.  This repeal is consequential on this Bill's repeal of the provisions in that Act which established that Agency (Centrelink).

Item 8  Subsection 10(2)

663                    This item repeals subsection 10(2) dealing with the position of the Child Support Registrar.  This item substitutes new subsections (2), (3) and (4).

664                    Under the new subsection (2) the Child Support Registrar is to be a person who is an SES employee in the Department and is specified in a written instrument made by the Secretary.

665                    Subsection 10(3) provides that an SES employee must not be specified in an instrument under subsection 10(2) if the person is, or is acting as, either the Chief Executive Centrelink or the Chief Executive Medicare. 

666                    The intention of subsection 10(3) is to prevent one person holding more than one of the positions of Chief Executive Medicare, Chief Executive Centrelink and Child Support Registrar at the same time.  This Bill introduces similar limitations in the provisions dealing with appointment of the Chief Executive Centrelink and the Chief Executive Medicare.

667                    The Secretary will not be eligible to be appointed as the Child Support Registrar because the Secretary is not an APS employee and therefore is not an SES employee within the meaning of section 34 of the PS Act. 

668                    Subsection (4) states that an instrument under subsection (2) is not a legislative instrument.  The instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 even without this express statement.  This provision is included to assist readers. 

Item 9  After Section 10

669                    This item inserts a new section 10A providing for the Secretary to appoint an SES employee in the Department to act as the Child Support Registrar during a vacancy in the position of Child Support Registrar or during any period or during all periods when the Child Support Registrar is absent from duty or from Australia or is, for any reason, unable to perform the duties of the position.  Section 10A provides that a person who is, or is acting as, either the Chief Executive Centrelink or the Chief Executive Medicare, may not be appointed to act as Child Support Registrar Maintaining this separation of the persons carrying out the functions of these different positions is consistent with subsection 10(3).

670                    This Bill introduces similar limitations in the provisions dealing with who can be appointed to act as the Chief Executive Centrelink or the Chief Executive Medicare.

671                    Subsection 10A(3) provides that anything done by or in relation to a person purporting to act under an appointment under subsection (1) is not invalid merely because there was a defect or irregularity in connection with the appointment or the appointment had ceased to have effect or the occasion had not arisen or had ceased.  This provision is intended, as far as possible, to prevent technical defects in relation to the appointment of a person to act in the position of Child Support Registrar from affecting the validity of things done by or in relation to such a person. 

Item 10  Subsection 15(1A)

672                    This item repeals subsection 15(1A) which currently authorises the Child Support Registrar to delegate his or her powers or functions under this Act to the "CEO" or "an employee of the Services Delivery Agency".  "CEO" and "an employee of the Services Delivery Agency" were defined terms. 

673                    This item substitutes a new subsection 15(1A) which authorises the Child Support Registrar to delegate all or any of his or her powers or functions to the Chief Executive Centrelink.  This change is consequential on this Bill's abolition of the office of Chief Executive Officer (Centrelink) and the establishment of a new position in the Department of Chief Executive Centrelink.

674                    The repealed subsection 15(1A) authorised delegation to employees of "the Services Delivery Agency" (Centrelink).  That aspect of the repeal of subsection 15(1A) is consequential on this Bill's repeal of the provisions which established Centrelink as a separate agency.  There is no need for the new subsection 15(1A) to deal with delegation to Departmental employees because subsection (1) already authorises delegation to "an officer or employee of the Department."

Item 11  Paragraphs 16(3)(ba) and (bb)

675                    Subsection 16(2) makes it an offence for a person to whom the section applies to make a record of, or to communicate to a person, any "protected information".  The term "protected information" is defined by subsection (1) as information that concerns a person and is disclosed to or obtained by another person in the course of, or because of, the other person’s duties under or in relation to this Act or such information (paragraph (a)) or such information which is communicated to another person in accordance with section 16. 

676                    The provisions in section 16 which qualify the general prohibition on making a record or communicating information include under subsection (3) provisions that subsection (2) does not prevent the Registrar, or a person authorised by the Registrar, from communicating any protected information:

·            under paragraph (ba) - to the CEO or an employee of the Services Delivery Agency, for the purpose of the administration of this Act or of any other law of the Commonwealth relating to pensions, allowances or benefits;

·            under paragraph (bb) - to the Chief Executive Officer or an employee of Medicare Australia for the purposes of the performance of functions or the exercise of powers under the MA Act.

677                    This item repeals these two paragraphs and substitutes new paragraphs (ba) and (bb) which are subdivided into subparagraphs so that they can be more easily read.  This item also amends these provisions as follows.

678                    The reference in paragraph (ba) to the "CEO" is replaced with a reference to the "Chief Executive Centrelink":

·            This change is consequential on this Bill's abolition of the office of Chief Executive Officer (Centrelink) and the establishment of a new position in the Department of Chief Executive Centrelink.

679                    The reference in paragraph (ba) to "an employee of the Services Delivery Agency" is replaced with a reference to a "Departmental employee".  This change is consequential on this Bill's repeal of provisions establishing Centrelink as a separate statutory authority. 

·            This amendment has the effect of widening the category of persons to whom the Registrar is authorised to communicate information to include all Departmental employees. 

·            However, the limitation that the communication must be "for the purpose of the administration of this Act or of any other law of the Commonwealth relating to pensions, allowances or benefits" is unchanged.

680                    The reference in paragraph (bb) to the "Chief Executive Officer" [of Medicare Australia] is replaced with a reference to the "Chief Executive Medicare". 

·            This change is consequential on this Bill's abolition of the office of Chief Executive Officer (of Medicare Australia) and the establishment of a new position in the Department of Chief Executive Medicare.

681                    The reference in paragraph (bb) to "an employee of Medicare Australia" is replaced with a reference to a Departmental employee. 

·            This change is consequential on this Bill's repeal of provisions establishing Medicare Australia as a separate statutory authority. 

·            This amendment has the effect of widening the category of persons to whom the Registrar is authorised to communicate information to include all Departmental employees.

682                    The limitation in paragraph (bb) to communication which is authorised is amended from communication "for the purposes of the performance of functions or the exercise of powers under the Medicare Australia Act 1973 " to communication "for the purpose of the performance of functions, or the exercise of powers, in connection with a medicare program". 

·            The definition of "medicare program" inserted by this Bill in the amended Medicare Act renamed by this Bill as the Human Services (Medicare) Act 1973 is limited to:

§   services, benefits, programs or facilities that are provided for under the Health Insurance Act 1973 , the National Health Act 1953 the Dental Benefits Act 2008 , the Aged Care Act 1997 , the Healthcare Identifiers Act 2010 , the Private Health Insurance Act 2007 and the Health and Other Services (Compensation) Act 1995 ; and

§   services, benefits, programs or facilities specified in the regulations under the Human Services (Medicare) Act.

·            The range of services etc covered by the seven Acts referred to above is narrower than all the functions and powers which are currently under the MA Act.  There is potential for regulations to expand the list of the services etc for which there can be communication. 

Item 12  Paragraph 16(4C)(d)

683                    This item amends paragraph 16(4C)(d) by replacing the reference to "Child Support Agency" with a reference to the "Registrar or an officer or employee of the Department".

684                    Paragraph 16(4C)(d) as amended authorises communication of protected information to the extent necessary to brief a relevant Minister about a possible error or delay on the part of the Registrar or an officer or employee of the Department. 

685                    The inclusion of the reference to the Registrar is consistent with the Registrar being an employee of the Department that is administered by the Minister.  The reference to an officer or employee of the Department is consistent with the previous administrative integration of the Child Support Agency into the Department.

Item 13  Subsection 16AA(3) (paragraphs (a) and (b) of the definition of relevant information )

686                    Section 16AA(1) makes it an offence - subject to the qualifications set out in the section - to record, use or communicate "relevant information". 

687                    This item amends paragraph 16AA(3)'s definition of "relevant information" by changing references to information in the records of the Child Support Agency to information in the records of the former Child Support Agency.  These changes reflect the fact that the Child Support Agency has ceased to exist as an agency separate from the Department.

Item 14  After section 16AA

688                    This item inserts section 16AB dealing with multiple secrecy provisions.  The intent of section 16AB is to clarify and simplify the circumstances in which the Registrar or an officer or employee of the Department may disclose, use or record information where the secrecy provisions of more than one Act apply in relation to specific information about a specific person, for example, a person’s address.  The provision makes clear that, if a person has provided the same specific personal information to the Department of Human Services for a number of different programs to which different secrecy provisions apply, the specific information can be dealt with in accordance with any of the applicable secrecy provisions.   Thus, for example, if a person provides the Department of Human Services with their address for the purposes of program “A” and program “B” and the secrecy provisions covering program “A” permit the disclosure of the person’s address in specific circumstances, the information can be disclosed in those circumstances even if the disclosure is not authorised  under the secrecy provisions covering program “B”.  This is intended to replicate, as far as possible, the current situation with the use and disclosure of information by the Department of Human Services, Medicare Australia and Centrelink.  For example, where, a person has provided their address to both Medicare Australia and the Department of Human Services, in some specific situations it is possible that Medicare Australia may be able to disclose the address to another person, but the Department of Human Services may be prevented by secrecy provisions from disclosing the same information.

689                    Section 16AB applies to actions of the Secretary, Registrar or an officer or employee of the Department of disclosure, use or the making of a record of, information.  Subsection (3) defines "disclose" to mean disclose, divulge or communicate.

690                    Subsection 16AB(2) provides that if:

(a)     particular information (the "protected information") is subject to a regulatory regime under a "designated program Act" (the "first program Act"); and

(b)     the protected information is also subject to a regulatory regime under another designated program Act (the "second program Act"); and

(c)     particular action can be taken in relation to the protected information in particular circumstances without contravening the second program Act;

then the taking of the action (disclosure, use or making a record) in those circumstances is taken not to contravene the first program Act.  The section will only apply if the same specific information about a person is held by the Department of Human Services under two or more programs covered by different secrecy provisions.

691                    The "designated program Acts" are the Acts listed in subsection (3).  These Acts are Acts which have provisions dealing with aspects of disclosure, use or the making of a record of, information which affect services benefits, programs or facilities delivered by the Human Service portfolio agencies. 

692                    Additional Acts may become “designated program Acts” by being prescribed in regulations. This power to prescribe additional Acts is important to ensure that the multiple secrecy provision remains current when new functions which require access to, and use of, information that is protected by legislation, are conferred on the Department of Human Services.

Item 15  Subparagraphs 94(1)(a)(iii) and (iv)

693                    Paragraph 94(1)(a) gives a range of places where people may lodge written applications for Social Security Tribunal review of some decisions under the Act.  Subparagraph (ii) provides for lodging at "an office of the Department". 

694                    This item repeals subparagraph 94(1)(a)(iii) which refers to lodging written applications for review by "an office of the Commonwealth Services Delivery Agency".  This Bill repeals provisions of the CSDA Act which establish the Commonwealth Services Delivery Agency (Centrelink).  There will still be offices operating under the name of Centrelink after Centrelink ceases to exist as a separate agency.  However, those offices will be offices of the Department.  Service at an office of the Department is already provided for in subparagraph (ii).

695                    This item also repeals subparagraph 94(1)(a)(iv) which refers to lodging written applications for review of Social Security Tribunal of some decisions under the Act or at "an office of the Department administering the Commonwealth Services Delivery Agency Act 1997 ".  The main purpose of this Bill is to support integration of service delivery through the Department of Human Services.  It is proposed that the Department administering that Act - which will be renamed the Human Services (Centrelink) Act 1997 by this Bill - will be the same Department as the Department referred to in subparagraph (ii).  Accordingly, there is no need to maintain lodging applications at the office of the Department administering the CSDA Act as a separate option.

Item 16  Subsection 95(1)

696                    Subsection 95(1) imposes obligations to forward to the SSAT applications for SSAT review which are received at offices in accordance with section 94.  This item repeals subsection 95(1) and substitutes a new subsection 95(1) which deletes references to an "office of the Commonwealth Services Delivery Agency" and to the "CEO of the Agency."

697                    Those changes are consequential on the amendments to section 94 and on this Bill's abolition of Centrelink.

Item 17  Paragraph 95(2)(b)

698                    This item amends paragraph 95(2)(b) by replacing the reference to "a Secretary or the CEO" with a reference to "the Secretary".

699                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.



 

Schedule 4 Consequential amendments

Part 1 General amendments

Aged Care Act 1997

Item 1  Paragraph 86-3(c)

700                    This items amends the paragraph by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Medicare".

701                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 2  Paragraph 86-3(ca)

702                    This item amends the paragraph by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".

703                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

Item 3  Section 86-7

704                    This item amends section 86-7 by replacing the reference to "CEO" (meaning the Chief Executive Officer (of Centrelink)  with a reference to "Chief Executive Centrelink".

705                    This change is consequential on the abolition of the statutory office of Chief Executive Officer (of Centrelink) and the creation of a new statutory office of Chief Executive Centrelink.

706                    This item further amends section 86-7 by replacing the reference to "an employee of the Service Delivery Agency" (Centrelink) with a reference to "a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 )" as amended by this Bill.

707                    This change is consequential on this Bill's repeal of the provisions which establish Centrelink and which provide for staff of the Department to be able to to assist in the carrying out of the Chief Executive Centrelink's functions.

Items 4 and 5  Paragraphs 96-2(2A)(a) and 96-2(3A)(a)

708                    These items amend these provisions which give the Secretary (of the Department of Health and Ageing) power to delegate powers under some provisions of the Act.  The persons to whom powers can be delegated under these provisions are amended by replacing references to "CEO" (meaning the Chief Executive Officer of Centrelink) with references to "Chief Executive Centrelink" and "Chief Executive Medicare".

709                    The deletion of the reference to the CEO and insertion of a reference to the Chief Executive Centrelink is consequential on the abolition of the statutory office of Chief Executive Officer (of Centrelink) and the creation of a new statutory office of Chief Executive Centrelink.

710                    The addition of the Chief Executive Medicare as a person to whom powers may be delegated under the Act is consistent with the purpose of enabling flexibility in arrangements for service delivery with the Department of Human Services providing support to both the Chief Executive Centrelink and the Chief Executive Medicare.

Item 6  Subsection 96-2(6A)

711                    This item amends this provision by replacing references to the "CEO" (meaning the Chief Executive Officer (of Centrelink) with references to "Chief Executive Centrelink".

712                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer (of Centrelink) and the creation of a new statutory office of Chief Executive Centrelink.

Item 7  Subsection 96-2(6A)

713                    This item amends subsection 96-2(6A) by replacing the reference to "an employee of the Services Delivery Agency (Centrelink)" with a reference to "a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 )" as amended by this Bill. 

714                    This change supports the integration of portfolio service delivery and implements the objective that all of the employees of the integrated Department should be available to assist in the carrying out of the Chief Executive Centrelink's functions.

715                    The power of sub-delegation continues to be not restricted to SES employees because of the volume of decisions to be made.

Item 8  After subsection 96-2A(6A)

716                    This item inserts subsection 96-2(6AA) which provides that if, under subsection (2A) or (3A) as amended by this Bill, the Secretary of the Department of Health and Ageing delegates a power to the Chief Executive Medicare, the Chief Executive Medicare may sub-delegate the power to a Departmental employee.

717                    This change is consequential on the amendments of subsections (2A) and (3A) and supports the integration of portfolio service delivery and implements the objective that all of the employees of the integrated Department should be available to assist in the carrying out of the Chief Executive Medicare's functions.

718                    The power of sub-delegation continues to be not restricted to SES employees because of the volume of decisions to be made.

Item 9  Paragraphs 96-2(7)(b) and (c)

719                    This item repeals paragraph 96-2(7)(b) and substitutes a provision replacing the reference to "CEO" with a reference to "Chief Executive Centrelink".

720                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

721                    This item also repeals paragraph 96-2(7)(c) and substitutes a provision replacing the reference to employees of Centrelink with a reference to Departmental employees. 

722                    This change supports the integration of portfolio service delivery and implements the objective that all of the employees of the integrated Department should be available to assist in the carrying out of the Chief Executive Centrelink's functions.

Item 10  Clause 1 of Schedule 1 (definition of Centrelink )

723                    This item repeals the definition of "Centrelink" by reference to the CSDA Act because this Bill repeals the provisions of that Act which establish Centrelink. 

Item 11  Clause 1 of Schedule 1 (definition of CEO )

724                    This item repeals this definition of "CEO" by reference to the CSDA Act.  These changes are consequential on this Bill's abolition of the statutory office of Chief Executive Officer.

Item  12  Clause 1 of Schedule 1

725                    This item inserts a definition of "Chief Executive Centrelink" by reference to the Human Services (Centrelink) Act 1997 which will be the name of the Commonwealth Services Delivery Agency Act 1997 as amended and renamed by this Bill.

Item  13  Clause 1 of Schedule 1

726                    This item inserts a definition of "Chief Executive Medicare" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill.

 

Item  14  Clause 1 of Schedule 1 (definition of employee )

727                    This item repeals this definition in relation to the Service Delivery Agency (Centrelink) because Centrelink is being abolished by this Bill. 

Item  15  Clause 1 of Schedule 1 (definition of Services Delivery Agency )

728                    This item repeals the definition of "Services Delivery Agency" (Centerlink) by reference to the CSDA Act because this Bill repeals the provisions of that Act which establish the Agency (Centrelink). 

Age Discrimination Act 2004

Item 16  Section 5

729                    This item inserts a definition of "Chief Executive Medicare" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill.

Items 17 and 18  Subparagraph 42(5)(a)(i) and Paragraph 42(5)(b)

730                    These items amend these provisions by replacing references to "Chief Executive Officer" with references to "Chief Executive Medicare".

731                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

A New Tax System (Family Assistance) (Administration) Act 1999

Item 19  Subsection 3(1) (paragraphs (b) and (d) of the definition of agency )

732                    This item amends the definition of "agency" by repealing paragraph (b) (which refers to the "Commonwealth Services Delivery Agency" (Centrelink) and paragraph (d) which refers to "Medicare Australia" and substituting a new paragraph (b) referring to the Human Services Department. 

733                    This change is consequential on the abolition of Medicare Australia and Centrelink.

Item 20  Subsection 3(1)

734                    This item inserts a definition of "centrelink program" by reference to the Human Services (Centrelink) Act 1997 which will be the name of the Commonwealth Services Delivery Agency Act 1997 as amended and renamed by this Bill. 

735                    This definition is used in provisions of the Act amended by this Bill which deal with information disclosure, use and recording. 

Item 21  Subsection 3(1)

736                    This item inserts a definition of "Chief Executive Centrelink" by reference to the Human Services (Centrelink) Act 1997 which will be the name of the Commonwealth Services Delivery Agency Act 1997 as amended and renamed by this Bill.

Item 22  Subsection 3(1)

737                    This item inserts a definition of "Chief Executive Medicare" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill.

Item 23  Subsection 3(1) (paragraphs (b) and (d) of the definition of head )

738                    This item amends the definition of "head" by:

·            repealing paragraph (b) (which refers to the Chief Executive Officer of the Commonwealth Services Delivery Agency as the head of that Agency (Centrelink); and

·            repealing paragraph (d) which refers to the Chief Executive Officer of Medicare Australia as the head of Medicare Australia; and

·            substituting a new paragraph (b) referring to Secretary of the Human Services Department as the head of that Department. 

739                    These changes are consequential on the abolition of Medicare Australia and Centrelink and on the abolition of the statutory offices of Chief Executive Officer Medicare Australia and Chief Executive Officer of Centrelink.

Items 24 and 25  Subsection 3(1)

740                    Item 24 inserts a definition "Human Services Department" as the Department administered by the Human Services Minister.  Item 25 item inserts a definition "Human Services Minister" as the Minister administering the Human Services (Centrelink) Act 1997

741                    The defined term "Human Services Department" is used in the section 3(1) definition of "agency" as amended by this Schedule.

Item 26  Subsection 3(1)

742                    This item inserts a definition of "medicare program" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill. 

743                    This definition is used in provisions of the Act amended by this Bill which deal with information disclosure, use and recording.

Item 27  Subsection 3(1) (after paragraph (a) of the definition of officer )

744                    This item inserts a paragraph (aa) in the definition of "officer" which brings within the definition - if the agency is the Human Services Department - the Chief Executive Centrelink and the Chief Executive Medicare.  The Chief Executive Centrelink and the Chief Executive Medicare are employees of the Department of Human Services.  As such they are within the existing paragraph (b) definition of "officer" as employees of an agency.  Paragraph (aa) is inserted for the avoidance of doubt.

Item 28  Subsection 3(1) (paragraphs (a) and (b) of the definition of protected information )

745                    This item repeals two of the paragraphs of this subsection's definition of "protected information" and substitutes three new paragraphs (a), (aa) and (b). 

746                    The new paragraph (a) replaces the current paragraph (a)'s reference to information about a person that is or was held in the records of the Commonwealth Services Delivery Agency (Centrelink) with a reference to such information that is or was held by the Human Services Department.  That change is consequential on the abolition of Centrelink. 

747                    The new paragraph (a) also inserts an express limitation in subparagraph (i) so that paragraph (a) of the definition only applies to such information which was obtained by an officer (as defined by the provisions amended by this Schedule) under the family assistance law. 

748                    The new paragraph (aa) brings within the definition of "protected information" information about a person that was held in the records of the Commonwealth Services Delivery Agency (within the meaning of the CSDA Act as in force before 1 July 2011). 

·            The purpose of this provision is to ensure that particular information which was "protected information" within paragraph (a) of the definition before the amendments made by this Bill will continue to be "protected information".

749                    The new paragraph (b) brings within the definition of "protected information", information about a person that was obtained by an officer under the family assistance law and was held in the records of Medicare Australia (within the meaning of the MA Act as in force before 1 July 2011). 

·            The purpose of this provision is to ensure that particular information which was "protected information" within paragraph (b) of the definition before the amendments made by this Bill will continue to be "protected information".

750                    These changes complement other changes made by this Bill and are consequential on the abolition of Medicare Australia and Centrelink and on the transfer of the records of those entities to the Department of Human Services.

Item 29  Paragraph 108(2)(a)

751                    Section 108(1) of the Act provides that a decision of any officer under the family assistance law must be reviewed on application under section 109A unless an exception set out in subsection (2) applies to the decision.  The exceptions provided for under paragraph 108(2)(a) include decisions made by the Secretary personally and decisions by another agency head himself or herself in the exercise of a delegated power.

752                    This item repeals 108(2)(a) and substitutes a new paragraph 108(2)(a) which continues the exception for the Secretary and other agency heads and adds decisions made by the Chief Executive Centrelink and the Chief Executive Medicare in the exercise of a delegated power.

753                    Prior to this Bill's abolition of Centrelink and Medicare Australia, their Chief Executive Officers would have come within the definition of "agency head" and their decisions were within the paragraph 108(2)(a) exception. 

754                    After the integration of Medicare Australia and Centrelink into the Department of Human Services and the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelink, the nature of the decisions is substantially unchanged. 

755                    Accordingly, it is appropriate for the subsection 108(2) exception to apply to decisions by the Chief Executive Centrelink and the Chief Executive Medicare.

Item 30  Subsection 109C(2)

756                    This item replaces the reference to "head of agency" to with a reference to the "Secretary of the Human Services Department". 

757                    This change is consistent with the abolition of Medicare Australia and Centrelink and with amendments to the definition of "head" made by this Schedule.

Item 31  Subsection 111(1A)

758                    Subsection 111(1A) provides that persons whose interests are affected by certain decisions may apply to the Social Security Appeals Tribunal for review of the decision.  This item repeals subsection 111(1A) and substitutes a new subsection 111(1A). 

759                    Subsection 111(1A) has provided for, and will continue to provide for, applications for review of certain decisions made by the Secretary personally or by another agency head himself or herself in the exercise of a delegated power. 

760                    Prior to this Bill's abolition of Centrelink and Medicare Australia, their Chief Executive Officers come within the definition of "agency head" and their decisions are within subsection 111(1A). 

761                    The new subsection 111(1A) adds decisions of the Chief Executive Centrelink and Chief Executive Medicare as decisions subject to SSAT review.

762                    These changes will not change the kind of decisions which are subject to SSAT Review.

763                    These changes are consequential on the integration of Medicare Australia and Centrelink into the Department of Human Services and the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelink.

Item 32  Paragraphs 118(1)(c) and (e)

764                    Subsection 118(1) provides who are the parties to a review by the SSAT. 

765                    This item repeals paragraph 118(1)(c) which makes the Chief Executive Officer of Centrelink party to SSAT review of decisions made by an officer of Centrelink and substitutes a new paragraph 118(1)(c). 

766                    The new subsection 118(1)(c) makes the Chief Executive Centrelink party to SSAT review of decisions:

·            made by an officer of the Department of Human Services;

·            which relate to a "centrelink program" (as defined by amendments brought into the renamed Human Services (Centrelink) Act 1997 by Schedule 2 of this Bill.

767                    This item repeals paragraph 118(1)(d) which makes the Chief Executive Officer of Medicare party to SSAT review of decisions made by an officer of Medicare Australia and substitutes a new paragraph 118(1)(d) which makes the Chief Executive Medicare party to SSAT review of decisions:

·            made by an officer of the Department of Human Services;

·            which relate to a "medicare program" (as defined by amendments brought into the renamed Human Services (Medicare) Act 1973 by Schedule 1 of this Bill.

768                    These changes are consequential on:

·            the abolition of Medicare Australia and Centrelink; and

·            the abolition of the offices of Chief Executive Officer Centrelink and Chief Executive Officer Medicare Australia; and

·            the integration of service delivery through the Department of Human Services. 

Item 33  Subdivision B of Division 3 of Part 5 (heading)

769                    This item repeals the heading "Submissions from parties other than agency heads" and substitutes "Submissions from parties other than agency representatives".  This change is consistent with amendments of the provisions in the Subdivision. 

Subdivision B - Submissions from parties other than agency representatives

Item 34  At the end of section 122A

770                    Section 122A provides that the subdivision of the Act in which the section appears does not apply in relation to a party to a review of a decision who is the head of an agency. 

771                    Prior to this Bill's abolition of Centrelink and Medicare Australia, their Chief Executive Officers come within the definition of "agency head" and their decisions are within subsection 111(1A). 

772                    This item amends this section by adding a reference to "Chief Executive Centrelink" and "Chief Executive Medicare" as parties to whom the subdivision does not apply.

773                    These changes are consequential on the integration of Medicare Australia and Centrelink into the Department of Human Services and the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelink.

Item 35  Subdivision BA of Division 3 of Part 5 (heading)

774                    This item repeals the heading "Submissions from parties other than agency heads" with "Submissions from parties other than agency representatives".  This change is consistent with amendments of the provisions in the Part. 

Subdivision BA Submissions from agency representatives

Item 36  Subsection 126A(1)

775                    This item repeals subsection 126A(1) and substitutes a new subsection 126A(1).

776                    Subsection 126A(1) has given the head of an agency that is a party to a review of a decision the right to make written submissions to the SSAT.  The new subsection 126A(1) continues that provision but gives the same right to the Chief Executive Centrelink and to the Chief Executive Medicare when they are parties to a review of a decision.

777                    These changes are consequential on the integration of Medicare Australia and Centrelink into the Department of Human Services and the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelink.

778                    This change is consequential on the integration of Medicare Australia and Centrelink into the Department of Human Services and on the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelink.

779                    The new subsection calls these persons "agency representatives". 

 

Items 37 -39

780                    These items amend the legislative provisions in the table below by replacing references to "head of agency" with references to "agency representative." 

Item

Legislative Provision                   

37

Subsection 126A(2)

38

Subsection 126A(4)

39

Subsection 126A(5)

 

Item 40  Subsection 141(2)

781                    The general obligation on the Principal Member of the SSAT on determination of the review to give each party a statement of appeal rights does not apply to a party who is the head of an agency.

782                    This item amends subsection 141(2) by extending this exception so that there is also no obligation to give such a notice to the Chief Executive Centrelink or the Chief Executive Medicare".

783                    These changes are consequential on the integration of Medicare Australia and Centrelink into the Department of Human Services and the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelin k.

Item 41  Subsection 144(1C)

784                    This item repeals subsection 144(1C) and substitutes a new subsection 144(1C).

785                    Subsection 144(1C) has provided for appeal to the AAT from decisions made by the Secretary personally, or by another agency head himself or herself in the exercise of a delegated power.  The new subsection 144(1C) continues those rights of appeal but also gives rights to appeal to the AAT against decisions made the Chief Executive Centrelink and the Chief Executive Medicare in the exercise of a delegated power. 

786                    These changes will not change the kind of decisions which are subject to AAT Review.

787                    These changes are consequential on the integration of Medicare Australia and Centrelink into the Department of Human Services and the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelink.

Item 42  At the end of paragraph 168(1)(b)

788                    Subparagraph 168(1)(b)(i) provides that the Secretary may disclose information which is otherwise subject to section 164 and 167 prohibitions on disclosure to the Secretary of a Department of State of the Commonwealth or to the head of an authority of the Commonwealth for the purposes of that Department or authority.

789                    That power currently applies in relation to disclosure to the Chief Executive Officers of Centrelink and Medicare Australia as the "heads of authorities".  However, the amendments being made by this Bill will abolish those statutory offices and will cause Centrelink and Medicare Australia to cease to exist as separate agencies.

790                    This item amends paragraph (1)(b) by adding new paragraphs authorising disclosure to the Chief Executive Centrelink for the purposes of a centrelink program (paragraph (iii)) and to the Chief Executive Medicare for the purposes of a medicare program (paragraph (iv)). 

791                    These changes are consequential on the integration of Medicare Australia and Centrelink into the Department of Human Services and the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelink.

792                    These changes will not substantially alter the circumstances in which the Secretary is authorised to make disclosures of information in relation to centrelink and medicare programs.

Items 43 and 44  Subsection 221(3)

793                    Subsection 221(3) provides that the Secretary must not delegate to an officer "except the head of an agency" the power under subparagraph 168(1)(b)(i) to disclose information to the Secretary of a Department of State of the Commonwealth or to the head of an authority of the Commonwealth for the purposes of that Department or authority.

794                    Currently the Chief Executive Officers of Centrelink and Medicare Australia come within the definition of "head of agency."  With the amendments made by this Bill those offices will no longer exist and the new statutory offices of Chief Executive Centrelink and Medicare will not come within the definition of "head of agency".

795                    These items amend subsection 221(3) by extending the exception so that it applies to "the head of an agency, the Chief Executive Centrelink or the Chief Executive Medicare."

796                    These changes are consequential on the integration of Medicare Australia and Centrelink into the Department of Human Services and the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelink.

797                    These changes will not substantially alter the circumstances in which the Secretary is authorised to make disclosures of information in relation to centrelink and medicare programs.

Item 45  Subsection 234(3)

798                    This item replaces the reference to "Chief Executive Officer of Medicare Australia" with a reference to "Chief Executive Medicare". 

799                    This change is consequential on the integration of Medicare Australia and Centrelink and the creation of the new statutory office of Chief Executive Medicare.

Item 46  At the end of section 234

800                    This item amends section 234 by adding subsection (4) allowing the Secretary (under the Act) and the Secretary of the Human Services Department to agree on administrative arrangements to further the objectives of the Act.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Item 47  Section 5 (paragraphs (i) and (j) of the definition of designated agency )

801                    This item amends section 5 by replacing the references to "the Child Support Agency" and "the Commonwealth Services Delivery Agency (Centrelink)" with "Human Services Department".

802                    This amendment reflects the previous integration of the Child Support Agency into the Department of Human Services through administrative action and of this Bill's abolition of Centrelink as a separate entity with effective integration of Centrelink into the Department of Human Services. 

Items 48 and 49  Section 5

803                    Item 48 inserts a definition "Human Services Department" as the Department administered by the Human Services Minister.  Item 49 inserts a definition of "Human Services Minister" as the Minister administering the Human Services (Centrelink) Act 1997

804                    The defined term "Human Services Department" is used in the section 5 definition of "designated agency" as amended by this Schedule.

805                    Under Ssction 126 of the Act, the AUSTRAC CEO may, in writing, authorise specified officials, or a specified class of officials, of a specified designated agency to have access to AUSTRAC information for the purposes of performing the agency’s functions and exercising the agency’s powers. 

806                    It is expected that the this power swould be used to authorise only limited groups and individuals within the Department of Human Services so that these amendments would not in practice result in an increase in the numbers of officials who have access to AUSTRAC information.

Child Support (Assessment Act) 1989

Item 50  Subsection 149(1AA)

807                    Subsection 149(1AA) authorises the Registrar to delegate in writing all or any of his or her powers or functions under this Act to the "CEO" or an "employee" of the "Services Delivery Agency".  Currently such delegation must be in accordance with "service arrangements". 

808                    The terms "CEO", "employee", "Services Delivery Agency" and "service arrangements" have taken their meanings from the definitions given to those terms by the Child Support (Registration and Collection) Act 1988 which is a cognate Act.  Schedule 2 is abolishing the position of "CEO" (of Centrelink) and is abolishing the "Services Delivery Agency" (Centrelink)" and Schedule 2 of this Act is repealing those definitions.  Schedule 3 is amending the references to the CSDA Act definitions accordingly.

809                    The term "service arrangements" appears to be a reference to section 7 of the CSDA Act.  That definition is also being repealed by Schedule 2 of this Bill.

810                    This item repeals subsection 149(1AA) and substitutes a new subsection 149(1AA) which authorises the Registrar in writing, to delegate all or any of his or her powers or functions under this Act to the Chief Executive Centrelink.  There is no longer a requirement for the delegation to be in accordance with a "service arrangement".

Item 51  Paragraphs 150(3)(ba) and (bb)

811                    Subsection 150(2) generally prohibits communication of "protected information."  That prohibition does not apply to the Registrar or a person authorised by the Registrar communicating protected information:

·            Under paragraph 150(3)(ba) - to the CEO (of Centrelink) or an employee of the Services Delivery Agency for the purpose of the administration of the Act or of any other law of the Commonwealth relating to pensions, allowances or benefits; or

·            Under paragraph 150(3)(bb) - to the Chief Executive Officer or an employee of Medicare Australia for the purposes of the performance of functions or the exercise of powers under the MA Act.

812                    This item repeals these paragraphs and substitutes new paragraphs.

813                    Apart from formatting changes to improve readability, the new paragraph (ba):

·            substitutes a reference to "the Chief Executive Centrelink" for the reference to "CEO"; and

·            substitutes a reference to Departmental employees within the meaning of the Human Services (Centrelink) Act 1997 as amended by this Bill for the reference to "employee of the Services Delivery Agency".

814                    Apart from formatting changes to improve readability, the new paragraph (bb):

·            substitutes a reference to "the Chief Executive Medicare" for the reference to "Chief Executive Officer "; and

·            substitutes a reference to Departmental employees within the meaning of the Human Services (Medicare) Act 1973 as amended by this Bill for the reference to "employee of Medicare Australia"; and

·            substitutes a reference to "connection with the medicare program" for the reference to "under the Medicare Australia Act 1973 ".  The term "medicare program" is defined in the Human Services (Medicare) Act 1973 as amended by this Bill.

815                    These changes are consequential on the integration of Medicare Australia and Centrelink into the Department of Human Services and the creation of the new statutory offices of Chief Executive Medicare and Chief Executive Centrelink.

816                    These changes will not substantially alter the circumstances in which the Registrar is authorised to make disclosures of information. 

Item 52  Paragraph 150(4C)(d)

817                    This item amends paragraph 150(4C)(d) by replacing the reference to "Child Support Agency" with "Registrar or an officer or employee of the Department".

818                    The amendments allows the Registrar or an officer or employee of the Department to communicate protected information to the Minister if the communication is necessary to brief a relevant Minister about a possible error or delay on the part of the Registrar or an officer or employee of the Department.

819                    This change is consistent with the fact that the Child Support Agency has been administratively integrated into the Department.

Item 53  Subsection 150AA(3) (paragraphs (a) and (b) of the definition of relevant information )

820                    This item amends paragraph 150AA(3)'s definition of "relevant information" by changing references to records of the Child Support Agency to records of the "former" Child Support Agency.

821                    These changes reflect the fact that the Child Support Agency has ceased to exist as an agency separate from the Department.

Item 54  Subsection 151A(1)

822                    This item repeals the subsection and substitutes another subsection. 

823                    Apart from changes in formatting to improve readability the changes are to replace references to the "CEO" (of Centrelink) with references to the Chief Executive Centrelink and to replace references to "an employee of the Services Delivery Agency" with a reference to "an officer or employee of the Department".

824                    These changes are consequential on the integration of Centrelink into the Department of Human Services, the abolition of the statutory office of Chief Executive Officer of Centrelink and the creation of the new statutory office of Chief Executive Centrelink.

Item 55  Subsection 151A(7)

825                    This item repeals the subsection and substitutes another subsection. 

826                    Apart from changes in formatting to improve readability the changes are to replace a reference to the "CEO" (of Centrelink) with a reference to the Chief Executive Centrelink and to replace a reference to "an employee of the Services Delivery Agency" with a reference to "an officer or employee of the Department".

827                    These changes are consequential on the integration of Centrelink into the Department of Human Services and the creation of the new statutory office of Chief Executive Centrelink.

 

Data-matching Program (Assistance and Tax) Act 1990

Item 56  Subsection 3(1) (paragraph (e) of the definition of assistance agency )

828                    This item repeals the paragraph including the "Services Delivery Agency" in the definition of "assistance agency" (Centrelink) and substitutes a paragraph which refers to the "Human Services Department". 

829                    This change is consequential on the abolition of Centrelink as a separate agency.

Item 57  Subsection 3(1) (definition of CEO )

830                    This item repeals the definition of "CEO" as the Chief Executive Officer of the "Services Delivery Agency" (Centrelink). 

831                    This repeal is consequential on the abolition of Centrelink as a separate agency and the abolition of the statutory office of Chief Executive Officer of Centrelink.

Item 58  Subsection 3(1)

832                    This item inserts a definition of "Chief Executive Centrelink" by reference to the Human Services (Centrelink) Act 1997 which will be the name of the Commonwealth Services Delivery Agency Act 1997 as amended and renamed by this Bill.

Item 59  Subsection 3(1) (definition of employee )

833                    This item repeals this definition of employee in relation to the "Services Delivery Agency" (Centrelink). 

834                    This repeal is consequential on the abolition of Centrelink as a separate agency. 

Items 60 and 61  Subsection 3(1)

835                    Item 60 inserts a definition of "Human Services Department" as the Department administered by the Human Services Minister.  Item 61 inserts a definition of "Human Services Minister" as the Minister administering the Human Services (Centrelink) Act 1997

836                    The defined term "Human Services Department" is used in the subsection 3(1) definition of "assistance agency" as amended by this Schedule.

Item 62  Subsection 3(1) (paragraph (b) of the definition of matching agency )

837                    This item amends subsection 3(1)'s definition by replacing the reference to "the employees of the "Services Delivery Agency" with a reference to "the Departmental employees (within the meaning of the Human Services (Centrelink) Act 1997 )" (as amended and renamed by this Bill).

838                    This change is consequential on the abolition of Centrelink as a separate agency and supports the integration of service delivery through the Department of Human Services. 

Item 63  Subsection 3(1) (paragraphs (b), (ca) and (de) of the definition of personal assistance )

839                    This item amends subsection 3(1) by replacing the reference to "Services Delivery Agency" with "Human Services Department". 

840                    This change is consequential on the abolition of Centrelink and supports the integration of service delivery through the Department of Human Services. 

Item 64  Subsection 3(1) (definition of Services Delivery Agency )

841                    This item repeals the definition of "Services Delivery Agency" (Centrelink).

842                    This change is consequential on the abolition of Centrelink (the Services Delivery Agency).

Item 65  Paragraph 3A(1)(a)

843                    This item repeals the paragraph and substitutes another paragraph. 

844                    Apart from changes in formatting to improve readability the changes are to replace a reference to the "CEO" (of Centrelink) with a reference to the "Chief Executive Centrelink" and to replace a reference to "an employee of the Services Delivery Agency" with a reference to "an officer or employee of the Department".

845                    These changes are consequential on the integration of Centrelink into the Department of Human Services and the creation of the new statutory office of Chief Executive Centrelink.

Item 66  Subsection 4(2)

846                    This item repeals the subsection and substitutes another subsection. 

847                    The new subsection replaces a reference to the "CEO" (of Centrelink) with a reference to the "Chief Executive Centrelink" and replaces a reference to "employees of the Services Delivery Agency" with a reference to "Departmental employees (within the meaning of the Human Services (Centrelink) Act 1997 )" (as amended and renamed by this Bill).

848                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer (Centrelink) and the creation of a new statutory office of Chief Executive Centrelink and on the abolition of Centrelink as a separate agency.  These changes support the integration of service delivery through the Department of Human Services. 

Item 67  Subsection 10(3A)

849                    Subsection 10(3) requires a source agency to commence any action in relation to information it receives under subsection (1) within 12 months from the date that it receives the information from the matching agency.  Subsection 10(3A) authorises the holders of particular positions to extend the time limit in subsection 10(3).

850                    This item amends item 10(3A) by replacing a reference to "the CEO" (of Centrelink) with a reference to "the Chief Executive Centrelink" as a person authorised to extend the subsection 10(3) time limit.  That change is consequential on the abolition of the statutory office of Chief Executive of Centrelink and the creation of the statutory office of Chief Executive Centrelink.

851                    This item also amends item 10(3A) by inserting after the reference to "the Secretary to an assistance agency that is a Department" as being authorised to grant an extension the restriction "other than the Human Services Department". 

Dental Benefits Act 2008

Items 68  Section 3

852                    These items amend the legislative provisions in the table below by replacing references to "Medicare Australia CEO" with references to "Chief Executive Medicare".

853                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 69  Section 4 (definition of approved form )

854                    This item amends this provision by replacing the reference to "Medicare Australia CEO" with a reference to "Chief Executive Medicare".

855                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer of Medicare Australia and the creation of a new statutory office of Chief Executive Medicare.

Item 70  Section 4

856                    This item inserts a definition of "Chief Executive Centrelink" by reference to the Human Services (Centrelink) Act 1997 which will be the name of the Commonwealth Services Delivery Agency Act 1997 as amended and renamed by this Bill.

Item 71  Section 4

857                    This item inserts a definition of "Chief Executive Medicare" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill.

Item 72  Section 4 (definition of employee of Medicare )

858                    This item repeals this definition because this Bill abolishes Medicare Australia.

Items 73 and 74  Section 4

859                    Item 73 inserts a definition "Human Services Department" as the Department administered by the Human Services Minister.  Item 74 inserts a definition of "Human Services Minister" as the Minister administering the Human Services (Medicare) Act 1973

860                    The defined term "Human Services Department" is used in the list of "entrusted public officials" provisions of section 34 as amended by this Schedule.

Item 75  Section 4 (definition of Medicare Australia CEO )

861                    This item repeals the definition because this Bill abolishes Medicare Australia and the statutory office of Chief Executive Officer of Medicare Australia.

Item 76  Section 4

862                    This item inserts a definition of "medicare program" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill. 

863                    This definition is used in provisions of section 35 of the Act as amended by this Bill which deal with disclosure of protected information.

Items 77 - 82

864                    These items replace references to "Chief Executive Officer of Medicare Australia" with references to "Chief Executive Medicare" in the following legislative provisions. 

Item

Legislative Provision

77

Section 10

78

Subsection 11(1)

79

Subsection 13(2)

80

Sections 14 to 16

81

Section 22

82

Sections 27 to 29

865                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer of Medicare Australia and the creation of a new statutory office of Chief Executive Medicare.

Item 83  Paragraphs 34(2)(a) to (c)

866                    Subsection 34(1) imposes duties not to disclose "protected information" on "entrusted public officials" as identified in subsection (2). 

867                    This item amends the list of "entrusted public officials" who are subject to these duties by:

·            repealing paragraphs (a), (b) and (c) which had referred to "the Medicare Australia CEO", "an employee of Medicare Australia" and "a consultant engaged under section 21 of the Medicare Australia Act 1973 "; and

·            substituting new paragraphs which refer to "the Chief Executive Medicare" (paragraph (a)), a "Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ) and "a consultant to the Human Services Department".

868                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer of Medicare Australia and the creation of a new statutory office of Chief Executive Medicare and on the abolition of Medicare Australia as a separate agency.  These changes reflect the integration of service delivery through the Department of Human Services.

Item 84  Paragraph 35(c)

869                    Section 35 authorises some disclosure of protected information.  This item amends the categories of "authorised disclosure" by replacing a reference to disclosure "for the purposes of enabling a person to perform duties or functions, or exercise powers, under the Medicare Australia Act 1973 " with a reference to disclosure "for the purposes of enabling a person to perform duties or functions, or exercise powers, in connection with a medicare program."

870                    These changes are consequential on the integration of Medicare Australia into the Department of Human Services.  The term "medicare programs" is defined in s41G of the Human Services (Medicare) Act 1973 as amended and renamed by Schedule 1 of this Bill.

871                    These changes will not substantially alter the circumstances in which section 35 authorises disclosures of information in relation to medicare programs as defined by amendments made by Schedule 1 of this Bill.

Item 85  Sections 36 to 40

872                    This item amends these legislative provisions by replacing references to "Medicare Australia CEO" with references to "Chief Executive Medicare".

873                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 86  Paragraphs 41(1)(a) to (c)

874                    This item amends section 41's authorisation of disclosure of protected information by repealing paragraphs (a), (b) and (c) and substituting new paragraphs (a), (b) and (c).  The changes:

·            replace a reference to "the Medicare Australia CEO or an employee of Medicare Australia" with a reference to "the Chief Executive Medicare";

·            replace a reference to "the Chief Executive Officer of Centrelink or an employee of Centrelink" with a reference to "the Chief Executive Centrelink";

·            replace a reference to "the Minister who administers Acts including "the Medicare Australia Act 1973 " with a reference to "the Minister who administers Acts including the Human Services (Medicare) Act 1973 ".

875                    These changes are consequential on amendments to legislation made by this Bill including:

·            the abolition of the statutory offices of Chief Executive Officers of Medicare Australia and Centrelink; and

·            the creation of new statutory offices of Chief Executive Medicare and Centrelink and on the abolition of Medicare Australia and Centrelink as separate agencies; and

·            the amendment and renaming of the Medicare Australia Act 1973 as Human Services (Medicare) Act 1973.

876                    By deleting references to employees these changes may narrow the circumstances in which section 41 authorises disclosures of information but will not otherwise substantially alter the operation of section 41. 

Item 87  Subsection 41(2) (definition of Centrelink )

877                    This item repeals this definition because the term will no longer be used in the Act. The Bill abolishes Centrelink.

Item 88  Subsection 41(2) (definition of employee of Centrelink )

878                    This item repeals this definition because the term will no longer be used in the Act. The Bill abolishes Centrelink.

Items 89 - 91

879                    These items amend these legislative provisions in the table below by replacing references to "Medicare Australia CEO" with references to "Chief Executive Medicare".

Item

Legislative Provision                   

89

Sections 57 and 58

90

Subsection 60(2)

91

Section 63

880                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Items 92-94  Subsections 64(1) and 64(2)

881                    Item 92 repeals subsection 64(1) and substitutes a new subsection.  The new subsection;

·            replaces a reference to "the functions of the Medicare Australia CEO under the Medicare Australia Act 1973 " with a reference to "the functions of the Chief Executive Medicare under the Human Services (Medicare) Act 1973 ";

·            replaces another reference to the "Medicare Australia CEO" with a reference to the "Chief Executive Medicare".

882                    Item 93 replaces a reference to the "Medicare Australia CEO" with a reference to the "Chief Executive Medicare."

883                    Item 94 replaces a reference to the " Medicare Australia Act 1973 " with a reference to the " Human Services (Medicare) Act 1973 ."

884                    These changes are consequential on amendments to legislation made by this Bill including:

·            the abolition of the statutory office of Chief Executive Officer of Medicare; and

·            the creation of new statutory offices of Chief Executive Medicare; and

·            the amendment and renaming of the Medicare Australia Act 1973 as Human Services (Medicare) Act 1973.

Farm Household Support Act 1992

Item 95  Subsection 3(2) (definition of Agency )

885                    This item repeals this definition because Centrelink is being abolished by this Bill.  The term "Agency" will no longer be used in the Act.

Item 96  Subsection 3(2) (definition of CEO )

886                    This item repeals the definition of "Chief Executive Officer" because this Bill repeals the relevant provisions of the CSDA Act establishing that position.  The term will no longer be used in the Act.

Item 97  Subsection 3(2)

887                    This item inserts a definition of "Chief Executive Centrelink" by reference to the Human Services (Centrelink) Act 1997 which will be the name of the Commonwealth Services Delivery Agency Act 1997 as amended and renamed by this Bill.

Item 98  Subsection 3(2) (definition of employee )

888                    This item repeals the definition of "employee" in relation to the Centrelink because Centrelink is being abolished by this Bill. 

Items 99 and 100  Subsection 3(2)

889                    Item 99 inserts a definition "Human Services Department" as the Department administered by the Human Services Minister.  Item 100 inserts a definition of "Human Services Minister" as the Minister administering the Human Services (Centrelink) Act 1997

890                    The defined term "Human Services Department" is used in the section 53A's provisions, as amended by this Schedule, relating to powers to require production of documents and information.

Item 101  Subsection 3(2) (definition of service arrangements )

891                    This item repeals this definition because this Bill repeals the relevant provisions of the CSDA Act defining that term.  The term will no longer be used in the Act.

Item 102  Subsection 53(3)

892                    This item repeals subsection 53(3) which currently authorises the Secretary to delegate his or her powers or functions under this Act "in accordance with service arrangements" to the "CEO" or "an employee of the Services Delivery Agency",  The Act's definitions of the terms "service arrangements," "CEO" and "an employee of the Services Delivery Agency" are being repealed by this Schedule. 

893                    This item substitutes a new subsection 53(3) which authorises the Secretary to delegate all or any of his or her powers or functions to the Chief Executive Centrelink or to a "Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 )".

894                    These changes are consequential on this Bill's abolition of the statutory office of Chief Executive Officer of Centrelink and the creation of a new statutory office of Chief Executive Medicare and on the abolition of Centrelink as a separate agency with service delivery through the Department of Human Services. 

895                    The power of delegation as amended will no longer be required to be "in accordance with service arrangements".  The removal of that restriction is consistent with the purpose of enabling flexibility in service delivery which is one of the main objectives of the Bill.

Item 103  Subsection 53A(1)

896                    This item repeals this subsection dealing with the exercise of delegated power to order production of documents or information and substitutes a new subsection.

897                    Apart from formatting changes to improve readability, the new subsection replaces references to the "CEO" (of Centrelink) and "employees of the Agency" (Centrelink) with references to "the Chief Executive Centrelink" and "Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 )."

898                    These changes are consequential on this Bill's abolition of the statutory office of Chief Executive Officer of Centrelink and the creation of a new statutory office of Chief Executive Medicare and on the abolition of Centrelink as a separate agency with service delivery through the Department of Human Services. 

Item 104  Subsections 53A(2) and (3)

899                    This item omits the reference to "Agency" and inserts a reference to the "Human Services Department." 

900                    This change is consequential on the abolition of Centrelink ("the Agency").

Item 105  Paragraph 53A(4)(a)

901                    This item omits the reference to "CEO or an employee of the Agency" and substitutes "Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 )."

902                    These changes are consequential on this Bill's abolition of the statutory office of Chief Executive Officer of Centrelink and the creation of a new statutory office of Chief Executive Medicare and on the abolition of Centrelink as a separate agency with service delivery through the Department of Human Services. 

Item 106  Paragraph 53A(4)(c)

903                    This item amends the paragraph by replacing the reference to "CEO" with "Chief Executive Centrelink".

904                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

Item 107  Paragraph 53A(4)(d)

905                    This item omits the reference to "Agency" and inserts a reference to the "Human Services Department." 

906                    This change is consequential on the abolition of Centrelink ("the Agency").

Freedom of Information Act 1982

Item 108  Subsection 4(1)

907                    This item inserts a definition of "Chief Executive Medicare" by reference to the Human Services (Medicare) Act 1997 as amended and renamed by this Bill.

Items 109 and 110  Subsection 4(1)

908                    Item 99 inserts a definition "Human Services Department" as the Department administered by the Human Services Minister.  Item 100 inserts a definition of "Human Services Minister" as the Minister administering the Human Services (Medicare) Act 1973 .

909                    The defined term "Human Services Department" is used in the section 53A's provisions, as amended by this Schedule, relating to powers to require production of documents and information.

Item 111  Division 1 of Part II of Schedule 2 (before the item relating to Indigenous Business Australia)

910                    This item inserts a reference to the "Human Services Department" in the list of "Agencies exempt in respect of particular documents" and identifies "documents in respect of commercial activities relating to the functions of the Chief Executive Medicare" as the relevant documents. 

Item 112  Division 1 of Part II of Schedule 2 (the item relating to Medicare Australia)

911                    This item repeals the item referring to Medicare Australia and documents relating to its commercial activities.

912                    This item is consistent with portfolio integration and is consequential on the abolition of Medicare Australia as a separate agency.

Item 113  Transitional—Medicare Australia documents

913                    This  item provides that the new item being inserted by this Bill in Schedule 2 of the Act which will refer to "documents in respect of commercial activities relating to the functions of the Chief Executive Medicare" is to have effect as if that item also referred to:

·            documents in respect of commercial activities of Medicare Australia (within the meaning of the MA Act as in force before 1 July 2011);

·            documents in respect of commercial activities of the Health Insurance Commission (within the meaning of the Health Insurance Act 1973 as in force before 1 October 2005).

914                    These provisions recognise that there has been business continuity through the re-structure of the Health Insurance Commission to Medicare Australia and then to the abolition of Medicare Australia and integration into the Department of Human Services.

Fringe Benefits Tax Assessment Act 1986

Item 114  Paragraph 5(5)(d)

915                    This item amends the paragraph by replacing the reference to "Chief Executive Officer of the Commonwealth Services Delivery Agency" with "Chief Executive Centrelink".

916                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

Item 115  Subsection 136(1)

917                    This item inserts a definition of "Chief Executive Centrelink" by reference to the Human Services (Centrelink) Act 1997 which will be the name of the Commonwealth Services Delivery Agency Act 1997 as amended and renamed by this Bill.

Health and Other Services (Compensation) Act 1995

Item 116  Subsection 3(1)

918                    This item inserts a definition of "Chief Executive Medicare" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill.

Item 117  Subsection 3(1) (definition of employee of Medicare Australia )

919                    This item repeals this definition because the Bill abolishes Medicare.

Item 118  Subsection 3(1) (definition of Medicare Australia CEO )

920                    This item amends the paragraph by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".

921                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Centrelink.

Items 119 - 135, except Item 134

922                    All but item 134 - for which separate explanatory material is provided - amend the provisions referred to in the table below:

·                            by replacing "Medicare Australia CEO" with "Chief Executive Medicare"; and/or

·                            by replacing "Medicare Australia CEO's" with Chief Executive Medicare's"; and/or

·                            by "Medicare Australia CEO must" with "Chief Executive Medicare must".

923                    These changes are consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item

Legislative Provision                   

Item

Legislative Provision                                

119       

Paragraph 8(6)(a)

127

Sections 21 to 26

120

Paragraph 10(6)(a)

128

Section 28

121

Sections 13 to 18

129

Sub-section 32(1)

122

Subsection 19(1)

130

Sections 33C to 33H

123

Subsection 19(1)

131

Subsection 33K(1)

124

Subsection 19(3)

132

Sections 34 to 36

125

Paragraph 19(3)(d)

133

Section 39

126

Subsection 19(4)

135

Subsection 40(2)

 

Item 134  Subsection 40(1)

924                    This item repeals this subsection and substitutes a new subsection which replaces the reference to "Medicare Australia CEO" with "Chief Executive Medicare".

925                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

 

Item 136  Subsection 40(2)

926                    This item omits the reference to the " Medicare Australia Act 1973 " and replaces it with " Human Services (Medicare Act) 1973 ".  This change reflects the renaming of the Act by this Bill.  

Item 137  Subsection 41(1)

927                    This items amends the subsection conferring power to delegate by replacing the reference to "Medicare Australia CEO" with "Chief Executive Medicare".

928                    This change is consequential on the abolition of the statutory office of Chief Executive Officer of Medicare Australia and the creation of a new statutory office of Chief Executive Medicare.

Item 138  Paragraph 41(1)(a)

929                    This item amends subsection 41(1)(a) by repealing this paragraph with a reference to "an employee of Australia Medicare" and substituting a paragraph with a reference to "a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 )" as amended by this Bill.

930                    These changes are consequential on this Bill's abolition of Medicare Australia and support the integration of portfolio service delivery with all employees of the integrated Department able to assist in the carrying out of the Chief Executive Medicare's functions.

Item 139  Subsection 41(2)

931                    This item omits the reference to "Medicare Australia CEO" and replaces it with "Chief Executive Medicare". This change is consequential on the abolition of the statutory office of Chief Executive Officer Medicare Australia and the creation of a new statutory office of Chief Executive Medicare.

932                    This item also omits the reference to the " Medicare Australia Act 1973" and replaces it with the Human Services (Medicare Act) 1973 .  This change reflects the renaming of the Act by this Bill.

Item 140  Paragraphs 41(3)(b) and (c)

933                    This item repeals these paragraphs conferring powers of delegation and substitutes new paragraphs (b) and (c).

934                    In paragraph (a) the reference to "Medicare Australia CEO" is replaced with "Chief Executive Medicare."  This change is consequential on the abolition of the statutory office of Chief Executive Officer Medicare Australia and the creation of a new statutory office of Chief Executive Medicare.

935                    This change supports the integration of portfolio service delivery and implements the objective that all of the employees of the integrated Department should be available to assist in the carrying out of the Chief Executive Medicare's functions.

936                    The new paragraph (b) replaces the reference to the " Medicare Australia Act 1973" and replaces it with the Human Services (Medicare Act) 1973 .  This change reflects the renaming of the Act by this Bill.

Item 141  Subsection 42(1)

937                    This items amends the paragraph by replacing references to "Medicare Australia CEO" with "Chief Executive Medicare".

938                    These changes are consequential on the abolition of the statutory office of Medicare Australia Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 142  Subsection 42(3) (paragraph (a) of the definition of authorised officer )

939                    This item amends the reference to the " Medicare Australia Act 1973 " and replaces it with the Human Services (Medicare Act) 1973 .  This change reflects the renaming of the Act by this Bill. 

Item 143  Subsection 42(3) (paragraph (b) of the definition of authorised officer )

940                    This item amends subsection 42(3)'s definition of "authorised officer" for purposes of conferring powers to require production of document and information by replacing the reference to "an employee of Medicare Australia" with a reference to "a Departmental employee (within the meaning of the Human Services (Medicare) Act 1997 )" as amended by this Bill. 

941                    These changes are consequential on this Bill's abolition of Medicare Australia and support the integration of portfolio service delivery with all employees of the integrated Department able to assist in the carrying out of the Chief Executive Medicare's functions.

Item 144  Subsection 42(3) (paragraph (b) of the definition of authorised officer )

942                    This items amends the paragraph by replacing the reference to "Medicare Australia CEO" with "Chief Executive Medicare".

943                    This change is consequential on the abolition of the statutory office of Chief Executive Officer of Medicare Australia and the creation of a new statutory office of Chief Executive Medicare.

Items 145 - 147

944                    These items amend the legislative provisions in the table below by replacing references to "employee of Medicare Australia" with references to "a Departmental employee (within the meaning of the Human Services (Medicare) Act 1997 )" as amended by this Bill.

Item

Legislative Provision                   

145

Paragraph 43(1)(c)

146

Subsection 43(3)

147

Subsection 43(5)

 

945                    These provisions deal with the requirements for notices to produce information under section 42.  The changes made by these items to section 45 are consequential on the changes to section 42 made by this Schedule.

Items 148 and 149  Subsection 43(5), Section 46

946                    These items amend these provisions by replacing references to "Medicare Australia CEO" with "Chief Executive Medicare".

947                    These changes are consequential on the abolition of the statutory office of Medicare Australia Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Health and Other Services (Compensation) Care Charges Act 1995

Items 150 and 151  Paragraph 6(6)(a), Paragraph 8(6)(a)

948                    These items amend the legislative provisions by replacing references to "Medicare Australia CEO" with "Chief Executive Medicare".

949                    These changes are consequential on the abolition of the statutory office of Medicare Australia Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Healthcare Identifiers Act 2010

Item 152  Section 5

950                    This item inserts a definition of "Chief Executive Medicare" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill.

Items 153 and 154  Section 5

951                    Item 154 inserts a definition "Human Services Department" as the Department administered by the Human Services Minister.  Item 155 inserts a definition of "Human Services Minister" as the Minister administering the Human Services (Medicare) Act 1973 .

952                    The defined term "Human Services Department" is used in section 12's provisions as amended by this Schedule dealing with disclosure of information to the service operator.

Item 155  Section 5

953                    This item inserts a definition of the term "medicare program" by reference to the Human Services (Medicare) Act 1973 as amended by this Bill. 

Item 156  Section 5 (definition of service operator )

954                    This item amends the paragraph by replacing the reference to "Chief Executive Officer of Medicare Australia with "Chief Executive Medicare".

955                    This change is consequential on the abolition of the statutory office of Chief Executive Officer and the creation of a new statutory office of Chief Executive Medicare.

Item 157  Paragraph 12(2)(a)

956                    This item repeals this paragraph identifying "data sources" which has a reference to "Medicare Australia" and substitutes a paragraph referring to the "Human Services Department". 

957                    This change is consequential on this Bill's abolition of Medicare Australia and transfer of Medicare Australia records to the Department of Human Services.

Item 158  At the end of subsection 12(3)

958                    Subsection 12(1) authorises "data sources" to transfer some identifying information for healthcare identifier purposes to the service operator.  This item adds subsection (4) which applies when the data source is the Human Services Department to exclude from the operation of subsection 12(1), identifying information which was not obtained in connection with a medicare program.

959                    The intent of this provision is to exclude from the disclosure authorisation in s12(1) information held by the Department of Human Services which is not connected with a medicare program such as information connected with centrelink programs. 

Health Insurance Act 1973

Item 159  Subsection 3(1) (definition of Centrelink CEO )

960                    This item repeals the definition of "Chief Executive Officer" because this Bill repeals the relevant provisions of the CSDA Act establishing that position.  The term will no longer be used in the Act.

961                    This change is consequential on the abolition of the statutory office of the "Centrelink CEO" and the creation of the statutory office of "Chief Executive Centrelink".

Item 160  Subsection 3(1)

962                    This item inserts a definition of "Chief Executive Centrelink" by reference to the Human Services (Centrelink) Act 1997 which will be the name of the Commonwealth Services Delivery Agency Act 1997 as amended and renamed by this Bill.

963                    This change is consequential on the abolition of the statutory office of the "Centrelink CEO" and the creation of the statutory office of "Chief Executive Centrelink."

Item 161  Subsection 3(1)

964                    This item inserts a definition of "Chief Executive Medicare" by reference to the Human Services (Medicare) Act 1973 which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill.

Item 162  Subsection 3(1) (definition of employee of Centrelink )

965                    This item repeals this definition because the Bill abolishes Centrelink.

Item 163  Subsection 3(1) (definition of employee of Medicare Australia )

966                    This item repeals this definition because the Bill abolishes Medicare.

Items 164 and 165  Subsection 3(1)

967                    Item 164 inserts a definition "Human Services Department" as the Department administered by the Human Services Minister.  Item 165 inserts a definition of "Human Services Minister" as the Minister administering the Human Services (Centrelink) Act 1997 .

Item 166  Subsection 3(1) (definition of Medicare Australia CEO )

968                    This item repeals the definition because this Bill abolishes the statutory office of Chief Executive Officer of Medicare Australia.

Item 167  Subsection 3(1)

969                    This item inserts a definition of the term "medicare program" by reference to the Human Services (Medicare) Act 1973 as amended by this Bill. 

Items 168 - 275, except for Items 256, 266, 268-272 and 275

970                    All but a few of the items - for which separate explanatory material is provided - amend the provisions referred to in the table below:

·                            by replacing references to "Medicare Australia CEO" with references to "Chief Executive Medicare".  These changes are consequential on the abolition of the statutory office of Medicare Australia CEO and the creation of a new statutory office of Chief Executive Medicare; and/or

·                            by replacing references to "an employee of Medicare Australia with references to "a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 )" as amended by this Bill.  These changes are consequential on this Bill's abolition of Medicare Australia. These changes also support the integration of portfolio service delivery and implement the objective that all of the employees of the integrated Department should be available to assist in the carrying out of the Chief Executive Medicare's functions.

Item

Legislative Provision                   

Item

Legislative Provision                                

168       

Subsection 3D(1)

219

Section 46A (paragraph (b) of the definition of information relating to a child’s Australian immunisation encounter )

169

Subsection 3D(3)

220

Section 46A (definition of recognised immunisation provider )

170

Paragraph 3DA(3)(a)

221

Section 46B

171

Subsections 3EA(1) to (6)

222

Paragraphs 46B(b) and (d)

172

Subsection 3EA(7) (definition of authorised officer )

223

Sections 46C and 46D

173

Section 3EB

224

Subsection 46E(1)

174

Subsections 3F(2), (4), (7), (8) and (9)

225

Paragraph 46E(1)(c)

175

175  Subsection 3F(10)

226

Subsection 46E(2)

176

Sections 3G to 3GB

227

Subsection 80(3)

177   

Subsections 10AA

228

Subsection 81(1) (paragraph (a) of definition of review period )

178

Sections 10AC to 10AE

229

Division 3 of Part VAA (heading)

179

Subparagraphs 16B(7)(e)(i)

230

Subsection 86(1)

180

Subparagraph 16B(11)(d)(i)

231

Subsection 87(1)

181

Paragraph 19AB(6)(b)

232

Subsection 88(1)

182

Subsection 19AB(6)

233

Subsection 88(3)

183

Subsection 19D(12)

234

Section 88A

184

Sections 20 to 20AB

235

Sections 89 and 89A

185

Subsection 20AC(1)

236

Subsection 91(2)

186

Subsection 20AC(2)

237

Paragraph 92(4)(c)

187

Paragraph 20AC(2)(a)

238

Subsection 93(7)

188

Paragraph 20AC(2)(b)

239

Paragraphs 105(1)(b) and 2(b)

189

Subsections 20AC(3) to (5)

240

Paragraph 106G(b)

190

Subsections 20AD(1) to (3)

241

Subsections 106J(2) and (3)

191

Subsection 20AD(4)

242

Subsection 106KB(2)

192

Subsection 20AD(5)

243

Section 106KC

193

Section 20B

244

Subparagraph 106KE(1)(b)(iii)

194

194 Paragraph 20BA(1)(e)

245

Subsection 106L(5)(a)(iii)

195

Subsection 20BA(2)

246

Subsection 106N

196

Subsection 20BA(3)

247

Section 106W

197

Paragraph 20BA(3)(c)

248

Subsection 106ZPM(3)

198

Paragraph 20BA(3)(d)

249

Paragraph 124EC(b)

199

Subsection 20BA(4)

250

Section 124EC

200

Subsection 20BA(5)

251

Subsection 125A(1)

201

Paragraphs 23DK(1A)(c) and (2A)(c)

252

Paragraph 125D(b)

202

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