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2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Human Services,
the Hon Tanya Plibersek)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010
OUTLINE
In December 2009, the Australian Government announced the development of a new service delivery approach that would significantly improve the efficiency and effectiveness of service delivery to the Australian people.
As part of this Service Delivery Reform initiative, the Human Services portfolio agencies (the Department of Human Services, including the Child Support Program and CRS Australia, Centrelink and Medicare Australia) have 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 enables further integration of the 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 focus of some current secrecy provisions on agencies as the basis for regulating information sharing; and
· make additional changes to the secrecy provisions in the social security law, family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 to ensure that the current arrangements within Centrelink for the use of customer information collected for the purpose of those programs can continue after the integration of Centrelink into the Department of Human Services; and
· 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 program secrecy provisions to ensure customers can consent to information about them being used for a purpose that would not otherwise be authorised by the Act under which the inofmration was obtained. These amendments support service delivery reform by enabling customers to choose how information about them is managed; and
· 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 on 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.
The Bill also amends section 8ZN to remove the need for patients to be notified if their records are seized as part of an investigation but no additional clinical details are obtained.
Financial impact statement
The amendments in this Bill have no financial impact.
Abbreviations
The following abbreviations are used in this explanatory memorandum
AIA means the Acts Interpretation Act 1901
Crimes Act means the Crimes Act 1914
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.
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 (Confidentiality of Taxpayer Information) Act 2010 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 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 (Confidentiality of Taxpayer Information) Act 2010 .
· 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 2010 .
· Schedule 4, Part 5 commences on 1 July 2011. However the provisions do not commence at all if section 2 of the Family Assistance and Other Legislation (Child Care and Other Measures Bill commences before 1 July 2011 because Part 5 of Schedule 4 replicates amendments made by the Family Assistance and Other Legislation (Child Care and Other Measures Bill .
· Schedule 4, Part 6 commences immediately after the commencement of section 2 of the Family Assistance and Other Legislation (Child Care and Other Measures Bill . However if the Family Assistance and Other Legislation (Child Care and Other Measures Bill commences before the day the Human Services Legislation Amendment Act receives Royal Assent, Part 6 of Schedule 4 does not commence at all.
· Schedule 5 commences on 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 long title of the Act.
Item 2 Section 1
7 This is a formal provision changing the short title of the Act. The new short title will be the Human Services (Medicare) Act 1973 .
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 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.
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.
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 Bill.
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)
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 Services 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 Order (AAO) - 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
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 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.
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 Officer 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 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 the qualification 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 The current 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 Amendment 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 (Serious and Organised Crime) Act (No. 2) 2010 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 documents so 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.
188 Items 72 and 73 Subsections 8ZM(1) and 8ZM(2)
189 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)
190 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.
191 Subsection 8ZN(2) currently provides two exceptions to the notification requirement set out in section 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.
192 In the course of exercising its powers under section 8ZN, from time to time Medicare Australia may seize or copy hard drives containing electronically recorded clinical data. The proposed amendments to section 8ZN seek to address anomalies which arise when a computer hard drive is seized or copied under warrant. A seized or copied hard drive may potentially contain a large number of patient records. However, in most cases, only a small number of those patient records will be relevant to the investigation. This may be because the investigation relates to particular services rendered to particular patients on specific dates.
193 The proposed amendments to section 8ZN seek to produce a sensible outcome which will ensure that patients continue to be notified when their clinical details have been scrutinised by Commonwealth officers. The amendments will put a stop to the unnecessary worry for patients and the waste of resources associated with large scale notifications to patients whose clinical details were never actually scrutinised. While there has been some concern expressed that the proposed amendments may impact on the privacy of individuals, every patient whose clinical details are actually scrutinised would still need to be notified.
194 As amended, Part IID of the Human Services (Medicare) Act 1973 will contain a number of safeguards to patient privacy in circumstances where multiple patient records are held together in electronic form:
· Under new section 8ZF, the authorised officer or an officer assisting may in certain circumstances take material or equipment to another place to examine it to determine whether it may be seized. New section 8ZGA allows an officer who takes electronic equipment away under this provision to copy data from the equipment to a data storage device. However, if the data is not used in evidence, section 8ZF requires it to be destroyed.
· New section 8ZG allows the authorised officer or an officer assisting to operate electronic equipment found at the warrant premises to access data. In certain circumstances the officer may copy the data and take the device from the premises. However, if the data is not used in evidence, section 8ZG requires it be destroyed.
· Under existing section 8ZM, any material seized but not used in evidence must be returned to the owner or the person from whom it was seized.
195 Whether or not a patient’s clinical details are accessed or examined will be an operational decision to be determined in the context of the particular investigation. In most circumstances, the primary requirement which must be met for the coercive powers under Part IID to be exercised is that the investigation must be into conduct of a criminal nature. For example, where an investigation centres on fraudulent claiming by a doctor for an item in the Medicare Benefits Schedule (MBS) which requires the patient to have a particular medical condition, the records of patients who received that particular MBS item from the doctor may need to be examined for evidential purposes.
196 Delegation to seek to use these powers is held at Senior Executive Officer level only. The case must be strong enough for a magistrate to approve a warrant to enable Medicare Australia to seize records.
197 Medicare Australia currently has procedures in place to manage and secure records obtained as a result of the exercise of its search and seizure powers. Where patient records containing clinical details are seized and it is necessary to examine those clinical records, the examination is undertaken by appropriately trained and qualified Medical Advisers employed by Medicare Australia. In circumstances where it is necessary for Medicare Australia Compliance Officers to have access to clinical details, that access is overseen by Medicare Australia Medical Advisers.
198 Medicare Australia’s Medical Advisers are appropriately qualified medical practitioners with current and unrestricted registration. Medicare Australia’s Compliance Officers who undertake investigations into fraud allegations are required at a minimum to hold a Certificate IV in Government Investigations.
199 Further to these accreditations, Compliance Officers and Medical Advisers are also required to undergo privacy training as a part of their induction into Medicare Australia, and receive annual privacy refresher training.
200 Medicare Australia has robust IT security infrastructure and physical security measures in place to ensure all patient records and other information obtained in the course of compliance activities is protected from unauthorised access. Only officers with a requirement to access these records are granted access to systems containing patient records and other information relevant to compliance activities.
201 Medicare Australia officers are also subject to the secrecy provisions set out in the Health Insurance Act 1973 and the National Health Act 1953 which set penalties for the unauthorised disclosure of information. In addition, Medicare Australia is subject to the requirements of the Privacy Act 1988 which restricts and regulates the collection, use and disclosure of personal information.
202 If the Bill is passed, the powers and functions under Part IID will be exercised by officers of the Department of Human Services, rather than Medicare Australia, and the existing controls outlined above would be continued by the Department of Human Services.
Item 75 Paragraph 8ZN(2)(b)
203 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)
204 This item inserts a new paragraph which operates as a further exception to the notification obligation in subsection 8ZN(1).
205 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
206 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
207 This item inserts a new section 8ZR relating to the power of magistrates.
208 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.
209 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..
210 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
211 This item repeals Part III which contains two sections, section 20 and section 21.
212 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.
213 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)
214 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.
215 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
216 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
217 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:
(a) services, benefits, programs or facilities that are provided for under:
(i) the Health Insurance Act 1973 ; or
(ii) the National Health Act 1953 ; or
(iii) the Dental Benefits Act 2008 ; or
(iv) the Aged Care Act 1997 ;
(v) the Healthcare Identifiers Act 2010 ;
(vi) the Private Health Insurance Act 2007 ;
(vii) the Health and Other Services (Compensation) Act 1995 ; or
(b) services, benefits, programs or facilities specified in a legislative instrument made by the Minister for the purposes of this paragraph.
218 It is intended that other programs currently delivered by Medicare Australia not specified in the new section 41G will be specified in a legislative instrument made by the Minister. When the Department of Human Services is given responsibility for delivering a new program, the program may be specified in a legislative instrument as a medicare program. Using a legislative instrument to specify programs as “medicare programs” will enable arrangements for the delivery of programs to be put in place quickly, when required. If a program is not specified in a legislative instrument as a “medicare program”, then it will become a centrelink program (see the notes to item 48 of Schedule 2).
219 A legislative instrument made for the purposes of subsection 41G(b) will be subject to disallowance.
220 The term “Medicare programs” is used in amendments made by this Bill to provisions of other Acts including provisions dealing with protected information.
Item 83 Subsection 42(1A)
221 This item repeals this subsection which had required the Chief Executive Officer to provide an annual report to the Minister.
222 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)
223 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)
224 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)
225 This item repeals this subsection which required tabling of the Chief Executive Officer's annual report in Parliament.
226 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
227 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.
228 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.
229 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.
230 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
231 Item 87 also inserts new section 43A (“multiple secrecy provisions”) into the renamed Human Services (Medicare) Act 1973 . New section 43A sets out how secrecy laws apply in a situation where the Department of Human Services holds the same piece of information that it has obtained under two or more program Acts. The new section will apply equally to information collected prior to 1 July 2011 and information obtained after 1 July 2011.
232 The effect of the multiple secrecy provisions is that where the Department of Human Services holds the same piece of information about a particular person under more than one program Act (such as family assistance and Medicare), the Department of Human Services is able to use and disclose that information if it complies with one of the secrecy provisions applicable to that information.
233 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.
234 Some of the secrecy provisions in program Acts impose restrictions on what recipients of protected information can do with the information. These are known as “secondary use and disclosure restrictions”. Secondary use and disclosure restrictions apply equally to non-government and government recipients of information, even though government recipients may also be subject to another secrecy regime once they receive the information.
235 In the situation where there is an authorised use of protected information obtained under one program for the purposes of another program, it is possible that secondary use and disclosure restrictions may apply. Without the multiple secrecy provision, there is a risk that a Department of Human Services officer would be required to comply with two sets of secrecy provisions (or, alternatively, there is potential for legal uncertainty as to which secrecy rules apply).
236 The multiple secrecy provision will operate so that, where a particular item of information about a person is transferred between programs delivered by the Department of Human Services (where both programs are covered by different secrecy provisions), any secondary use and disclosure restrictions in one Department of Human Services program secrecy provision will not operate to limit the use or disclosure of that information by Department of Human Services officers, where that is authorised by another of the Department of Human Services program secrecy provisions. The secondary use and disclosure restrictions would continue to apply to information that was disclosed to any entity other than Department of Human Services.
237 New subsection 43A(1) specifies that the multiple secrecy provision applies to particular information if that information is subject to a regulatory regime under two “designated program Acts”, which are specified in subsection 43A(3).
238 In identifying whether particular information is subject to regulatory regime under a designated program Act, the fact that the information is subject to a regulatory regime under another designated program Act is disregarded. Without this provision, it may be difficult to apply the multiple secrecy provision in practice. This is because, in some cases, a court may consider that two program Acts that regulated the same information in different ways were inconsistent, and may therefore decide that only one of those Acts could apply in the circumstances.
239 New subsection 43A(2) is the main operative part of the provision. If the Secretary of the Department of Human Services, the Chief Executive Medicare or a Department of Human Services employee discloses, uses or makes a record of protected information without contravening the first program Act, that action does not contravene the second program Act.
240 The multiple secrecy provision can apply “successively” in a situation where three or more sets of secrecy provisions apply to the same piece of information. In that situation, the provision could be applied to two or more pairs of secrecy provisions. For example, if secrecy provisions A, B and C apply to the same piece of information and the Department of Human Services sought to rely on secrecy provision A, then the multiple secrecy provision would be applied to secrecy provisions A and B, and then A and C.
241 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.
242 Additional Acts may become “designated program Acts” by being specified in a legislative instrument. This power to specify 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. Using a legislative instrument to specify “designated program Acts” will enable arrangements for the delivery of new programs to be put in place quickly, when required.
243 A legislative instrument made for the purposes of section 43A(3) will be subject to disallowance.
Part 2—Transitional provisions
244 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.
245 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.
246 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.
247 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.
248 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.
249 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.
250 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; or
· the Commonwealth is a party described as the Commonwealth represented by Medicare Australia.
251 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
252 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.
253 Subitem 89 identifies particular acts done by or in relation to the "Chief Executive Officer" before the "transition time" to which item 89 applies.
254 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.
255 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.
256 The acts to which this item applies are acts done by the Chief Executive Officer, 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; 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.
257 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.
258 Item 88 defines the term "the Secretary" as meaning the Secretary of the Department.
259 Subitem 89 (3) provides that the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.
260 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;
261 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.
262 Subitem 89(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time.
263 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.
264 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.
265 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.
266 Under subitem 90(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.
267 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.
268 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 5 by reference to new section 4 inserted by this Bill.
269 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.
270 Subitem 90(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time.
271 Subitem 90(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.
272 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".
273 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.
274 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.
275 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.
276 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.
277 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.
278 Under subitem 91(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.
279 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.
280 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.
281 Subitem 91(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time.
282 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
283 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.
284 Under subitem 92(2), if the act was done by the Chief Executive Officer, it has effect after transition time 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.
285 Under subitem 92(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.
286 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.
287 Subitem 92(5) provides that a declaration under subitem (3) or (4) before or after the transition time takes effect at the transition time.
288 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
289 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.
290 Under subitem 93 (2) any such document has effect as if it had been given to, or lodged with the Department.
291 Under subitem 93(3) the Minister may, by legislative instrument, declare that subitem (2) does not apply in relation to a specified document.
292 Under subitem 93(4) at the same time 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.
293 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.
294 Subitem 93(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time.
295 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.
296 This item applies to an act done in relation Medicare Australia before the transition time which is not covered by item 93.
297 Under subitem 94(2) the act has effect as if it had been done in relation to the Department.
298 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.
299 Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 94(2) to avoid anomalous or inappropriate outcomes.
300 Subitem 94(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
301 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.
302 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.
303 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.
304 Under subitem 95(3) the Minister may by legislative instrument declare that subitem 95(2) does not apply to a specified act.
305 Subitem 95(4) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
306 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
307 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
308 This item ensures that certain instruments and agreements 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.
309 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) agreements made between the Chief Executive Officer and a Minister or a principal officer of a Commonwealth authority about the exercise or performance of the Chief Executive Officer’s powers or functions under section 7A;
(d) Ministerial directions to the Chief Executive Officer about the exercise or performance of powers or functions under section 8;
(e) requests from the Minister for information from the Chief Executive Officer under section 8AA; and
(f) 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).
310 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
311 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.
312 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.
313 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.
314 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.
315 Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 97(2) to avoid anomalous or inappropriate outcomes.
316 Subitem 97(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
317 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.
318 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
319 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.
320 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.
321 Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 98(2) to avoid anomalous or inappropriate outcomes.
322 Subitem 98(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
323 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.
324 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
325 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.
326 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.
327 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.
328 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.
329 Subitem 99(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
330 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.
331 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
332 This item applies to certain instruments and agreements 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 item 96A) and accordingly it is not necessary to translate the references in these lapsed instruments and agreements to new references.
333 Item 99A is included for the avoidance of doubt.
Division 4 - Proceedings in courts and tribunals
Item 100 NOT USED
Item 101 Transitional— proceedings to which the Commonwealth represented by the CEO is a party
334 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.
335 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— proceedings to which the CEO or Medicare Australia is a party
336 This item applies to proceedings pending immediately before the transition time in which a party to the proceedings is the Chief Executive Officer or Medicare Australia.
337 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— proceedings to which the Commonwealth represented by Medicare Australia is a party
338 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
339 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
340 The Items in Division 5 deal with transitional matters arising from the movement of employees from Medicare Australia 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 Australia employee in relation to Department work until a single enterprise agreement is successfully negotiated.
341 If a person becomes a new employee, as defined by subitem 106(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
342 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
343 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.
344 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.
345 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
346 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).
(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 2009 .
(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.
(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 2009 . Section 58 of that Act generally requires that only one enterprise agreement can apply to an employee at a particular time.)
Transferring employees covered by an individual
347 Under subitem (3) if a transferring employee's employment in Medicare Australia was covered immediately before the transition time by an individual agreement-based transitional instrument, then that agreement, 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.
348 Under subitem (11), for item 106, the term individual agreement-based transitional instrument has the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .
349 Subitem (3) in effect preserves the transferring employee's position under the individual agreement-based transitional instrument after transition. However, the coverage of the employee under the agreement after transition may cease in accordance with subitem (4).
350 Subitem (4) sets out procedures for shifting transferring employees covered by an individual agreement-based transitional instrument 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 individual agreement-based transitional instrument) the enterprise agreement covers the Commonwealth and the transferring employee in relation to Department work.
351 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.
352 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.
353 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 2009 ) 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
354 Subitem (5) applies if a person is a transferring employee; and immediately before the transition time, the person’s employment in Medicare Australia was covered by a determination under subsection 24(1) of the PS Act.
355 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 certain industrial instruments.
356 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.
357 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.
358 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
359 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;
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 person becomes a new employee and takes effect from the time the person becomes a new employee.
360 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.
361 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 2009 ) as apply to transferring employees under subitem (2).
Section 58 of the Fair Work Act 2009
362 This provision qualifies the operation of subitems (2), (4) and (7) by declaring that any shift to an enterprise agreement is subject to section 58 of the Fair Work Act 2009 which generally requires that only one enterprise agreement can apply to an employee at a particular time.
Delegation
363 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
364 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
365 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
366 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 108 Transitional—transfer of appropriated money
367 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.
368 This is consistent with the integration of Medicare Australia into the Department.
Item 109 Transitional—responsibility for Commonwealth resources
369 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
370 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.
371 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
372 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
373 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
374 This item has 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 of Schedule 1.
Item 114 Transitional—amendments of sections 8ZF and 8ZG of the Medicare Australia Act 1973
375 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
376 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
377 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.
378 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
379 This is a formal provision changing the long title of the Act.
Item 2 Section 1
380 This is a formal provision changing the short title of the Act. The new short title will be the Human Services (Centrelink) Act 1997 .
Item 3 Section 2A
381 This item repeals this section because it is redundant.
382 Chapter 2 of the Criminal Code now applies to all Commonwealth offences.
Item 4 (definition of Agency )
383 This item repeals this definition because the Agency established by the Act is being abolished by this Bill.
Item 5 Section 3
384 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
385 This item inserts a definition of the term "Chief Executive Centrelink" which refers to the new section 7 being inserted in the renamed Human Services (Centrelink) Act 1997 by this Bill.
Item 7 Section 3
386 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 )
387 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 )
388 This item repeals this definition because the term will no longer be used in the Act.
Item 10 Section 3 (definition of Commonwealth service )
389 This item repeals this definition because the term will no longer be used in the Act.
Item 11 Section 3
390 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.
391 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 )
392 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
393 This item defines the word "function" to include "power".
394 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.
395 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
396 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
397 This item repeals the definition of this term "perform" to include "exercise".
398 This change is consequential on the change to the definition of "function" to include "power".
Item 16 Section 3 (definition of principal officer )
399 This item repeals this definition because the term will no longer be used in the Act.
Item 17 Section 3
400 This item inserts a definition of the term "Secretary".
Item 18 Section 3 (definition of service arrangements )
401 This item repeals the definition because the term will no longer be used in the Act.
Item 19 Section 3
402 This item inserts a definition of "service delivery functions" by reference to the new section 8A, inserted by item 29.
Item 20 Part 2
403 This item repeals Part 2 which had established Centrelink comprising the Chief Executive Officer and the "employees".
404 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)
405 This item repeals the heading and substitutes a heading which refers to "Chief Executive Centrelink".
406 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)
407 This item repeals the heading because Part 3 will no longer be divided into Division 1 and Division 2.
408 This change is consequential on the repeal of Division 2.
Item 23 Section 7
409 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.
410 This item also inserts a new section 7 which establishes a statutory office of Chief Executive Centrelink.
411 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.
412 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 ).
413 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.
414 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.
415 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.
416 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).
417 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.
418 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)
419 This item amends this provision by replacing a reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".
420 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)
421 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)
422 This item amends this provision by replacing references to "Chief Executive Officer" with references to "Chief Executive Centrelink ".
423 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)
424 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)
Item 27A Subsection 8(2)
426 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
427 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.
428 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 Order (AAO) - 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.
429 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.
430 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.
431 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.
432 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
New section 8A
435 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.
436 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.
437 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.
438 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.
439 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.
440 This aspect of the function will be particularly important in times of response to natural emergencies but is not limited to emergency situations.
442 Item 29 also 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.
443 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
444 This item repeals sections 9, 10 and 11.
445 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.
446 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.
447 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.
448 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.
449 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)
450 This item amends subsection 12(1) which authorises delegation by the Chief Executive of Officer of powers or functions to employees.
451 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.
452 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".
453 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.
454 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.
455 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.
456 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)
457 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).
458 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.
459 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)
460 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.
461 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)
462 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.
463 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)
464 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.
465 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)
466 This item amends the subsection by replacing a reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".
467 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
468 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.
469 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
470 This item inserts new sections 13 to 16.
471 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.
472 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.
473 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
474 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
475 This item repeals Part 4 which contains two sections - section 35 and section 37.
476 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.
477 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)
478 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)
479 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 )
480 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.
481 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.
482 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.
483 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 )
484 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
485 This item adds subsections (5), (6) and (7) to section 38.
486 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.
487 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.
488 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.
489 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.
490 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.
491 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
492 This item amends the section by replacing a reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".
493 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
494 This item repeals this section which had required the Chief Executive Officer to provide an annual report to the Minister
495 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.
496 This item also introduces new sections 40 and 40A.
Centrelink Programs
(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 a legislative instrument made for the purposese of this paragraph.
498 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).
499 A legislative instrument made for the purposes of section 40(1)(b) will be subject to disallowance.
500 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 ; or
(c) services, benefits, programs or facilities that are specified in a legislative instrument made by the Minister for the purposes of this paragraph.
501 The term "medicare program" is defined by a new definition being inserted in section 3 by item 14 of Schedule 2 of this Bill by reference to the meaning of that term as in section 41G of the Human Services (Medicare) Act 1973 as amended by Schedule 1 of this Bill.
502 A legislative instrument made for the purposes of paragraph 40(3)(c) will be subject to disallowance. While the circumstances when the Minister might elect to make the instrument contemplated paragraph 40(3)(c) are limited, this paragraph gives the Minister flexibility to manage programs where it is not appropriate for the program to be either a “centrelink program” or a “medicare program” for the purposes of the relevant secrecy provisions.
503 The definition of "centrelink program" inserted by section 40 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.
504 Item 48 of Schedule 2 also inserts new section 40A (“multiple secrecy provisions”) into the renamed Human Services (Centrelink) Act 1997 . New section 40A sets out how secrecy laws apply in a situation where the Department of Human Services holds the same piece of information that it has obtained under two or more program Acts. The new section will apply equally to information collected prior to 1 July 2011 and information obtained after 1 July 2011.
505 The effect of the multiple secrecy provisions is that where the Department of Human Services holds the same piece of information about a particular person under more than one program Act (such as family assistance and Medicare), the Department of Human Services is able to use and disclose that information if it complies with one of the secrecy provisions applicable to that information.
506 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.
507 Some of the secrecy provisions in program Acts impose restrictions on what recipients of protected information can do with the information. These are known as “secondary use and disclosure restrictions”. Secondary use and disclosure restrictions apply equally to non-government and government recipients of information, even though government recipients may also be subject to another secrecy regime once they receive the information.
508 In the situation where there is an authorised use of protected information obtained under one program for the purposes of another program, it is possible that secondary use and disclosure restrictions may apply. Without the multiple secrecy provision, there is a risk that a Department of Human Services officer would be required to comply with two sets of secrecy provisions (or, alternatively, there is potential for legal uncertainty as to which secrecy rules apply).
509 The multiple secrecy provision will operate so that, where a particular item of information about a person is transferred between programs delivered by the Department of Human Services (where both programs are covered by different secrecy provisions), any secondary use and disclosure restrictions in one Department of Human Services program secrecy provision will not operate to limit the use or disclosure of that information by Department of Human Services officers, where that is authorised by another of the Department of Human Services program secrecy provisions. The secondary use and disclosure restrictions would continue to apply to information that was disclosed to any entity other than Department of Human Services.
510 New subsection 40A(1) specifies that the multiple secrecy provision applies to particular information if that information is subject to a regulatory regime under two “designated program Acts”, which are specified in subsection 40A(3).
511 In identifying whether particular information is subject to regulatory regime under a designated program Act, the fact that the information is subject to a regulatory regime under another designated program Act is disregarded. Without this provision, it may be difficult to apply the multiple secrecy provision in practice. This is because, in some cases, a court may consider that two program Acts that regulated the same information in different ways were inconsistent, and may therefore decide that only one of those Acts could apply in the circumstances.
512 New subsection 40A(2) is the main operative part of the provision. If the Secretary of the Department of Human Services, the Chief Executive Centrelink or a Department of Human Services employee discloses, uses or makes a record of protected information without contravening the first program Act, that action does not contravene the second program Act.
513 The multiple secrecy provision can apply “successively” in a situation where three or more sets of secrecy provisions apply to the same piece of information. In that situation, the provision could be applied to two or more pairs of secrecy provisions. For example, if secrecy provisions A, B and C apply to the same piece of information and the Department of Human Services sought to rely on secrecy provision A, then the multiple secrecy provision would be applied to secrecy provisions A and B, and then A and C.
514 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.
515 Additional Acts may become “designated program Acts” by being specified in a legislative instrument. This power to specify 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. Using a legislative instrument to specify “designated program Acts” will enable arrangements for the delivery of new programs to be put in place quickly, when required.
516 A legislative instrument made for the purposes of section 40A(3) will be subject to disallowance.
Part 2—Transitional provisions
517 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 Officer of Centrelink and from the abolition of Centrelink.
518 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; and
· give effect to documents referring to Centrelink as if those references were references to the Department.
519 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; and
· give effect to documents referring to Centrelink as if those references were references to the Department.
520 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.
521 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.
522 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.
523 The transitional provisions also deal with proceedings pending in Courts and Tribunals where:
· the Chief Executive Officer is a party;
· Centrelink is a party;
· the Commonwealth is a party described as the Commonwealth represented by the Chief Executive Officer; or
· the Commonwealth is a party described as the Commonwealth represented by Centrelink.
524 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
525 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.
526 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.
527 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 2) commences 1 July 2011.
528 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.
529 The acts to which this item applies are acts done by the Chief Executive Officer, 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; 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.
530 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.
531 Item 49 defines the term "the Secretary" as meaning the Secretary of the Department.
532 Subitem 50(3) provides that the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.
533 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; 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 Centrelink.
534 Subitems (3) and (4) enable the Minister to make declarations to adjust the general effect of subitem 50(2) where appropriate to avoid anomalous or inappropriate outcomes.
535 Subitem 50(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time.
536 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.
537 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.
538 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.
539 Under subitem 51(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.
540 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.
541 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 2). The meaning of the term under the amended Act is set out in item 6 by reference to new section 7 inserted by this Bill.
542 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 1.
543 Subitem 51(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time.
544 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.
545 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".
546 The term "non-binding governmental agreement" is defined by item 49 as meaning an agreement:
(a) between Centrelink and a government body; and
(b) that is not legally enforceable; and
(c) that was entered into before the transition time.
547 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.
548 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.
549 The non-binding agreements which are subject to item 52 include service arrangements entered into in accordance with section 7 of the CSDA Actwith 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.
550 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.
551 Under subitem 52(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.
552 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 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.
553 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 Secretary or the Chief Executive Medicare is to allow flexibility in the integration of delivery of services.
554 Subitem 52(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time.
555 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
556 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.
557 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.
558 Under subitem 53(3) the Minister may by legislative instrument declare that subitem (2) does not apply in relation to a specified act.
559 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.
560 Subitem 53(5) provides that a declaration under subitem (3) or (4) before or after the transition time takes effect at the transition time.
561 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
562 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.
563 Under subitem 55(2) any such document has effect as if it had been given to, or lodged with the Department.
564 Under subitem 55(3) the Minister may, by legislative instrument, declare that subitem (2) does not apply in relation to a specified document.
565 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.
566 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.
567 Subitem 55(5) provides that a declaration under subitem (3) or (4) after the transition time takes effect at the transition time.
568 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.
569 This item applies to an act done in relation to Centrelink before the transition time which is not covered by item 54.
570 Under subitem 55(2) the act has effect as if it had been done in relation to the Department.
571 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.
572 Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 55(2) to avoid anomalous or inappropriate outcomes.
573 Subitem 55(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
574 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.
575 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.
576 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.
577 Under subitem 56(3) the Minister may by legislative instrument declare that subitem 56(2) does not apply to a specified act.
578 Subitem 56(4) provides that a declaration made under subitem (3) after the transition time takes effect at the transition time.
579 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.
580 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
581 This item ensures that certain instruments and agreements 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.
582 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) agreements made between the Chief Executive Officer and a Minister or a principal officer of a Commonwealth authority about the exercise or performance of the Chief Executive Officer’s powers or functions under section 8A;
(d) Ministerial directions to the Chief Executive Officer about the exercise or performance of powers or functions under section 9;
(e) requests from the Minister for information from the Chief Executive Officer under section 10; and
(f) 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).
583 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
584 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.
585 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.
586 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.
587 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.
588 Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 58(2) to avoid anomalous or inappropriate outcomes.
589 Subitem 58(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
590 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.
591 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
592 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.
593 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.
594 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.
595 Subitems (3) and (4) give the Minister flexibility to modify the operation of subitem 59(2) to avoid anomalous or inappropriate outcomes.
596 Subitem 59(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
597 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.
598 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
599 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;
but does not include an Act. This is a broad definition but under subitem 60(1), item 60 only applies to an instrument which is not covered by item 58 or item 59.
600 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.
601 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.
602 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.
603 Subitem 60(5) provides that a declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
604 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.
605 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
606 This item applies to certain instruments and agreements 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 the notes to item 57A) and accordingly it is not necessary to translate the references in these lapsed instruments to new references.
607 Item 60A is included for the avoidance of doubt.
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:
(a) in the Administrative Appeals Tribunal; or
(b) in the Social Security Appeals Tribunal; or
(c) in a court under the Administrative Decisions (Judicial Review) Act 1977 ;
(d) 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).
(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 2009 .
(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.
(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 2009 . Section 58 of that Act generally requires that only one enterprise agreement can apply to an employee at a particular time.)
Transferring employees covered by an individual agreement
624 Under subitem (3) if a transferring employee's employment in Centrelink was covered immediately before the transition time by an individual agreement-based transitional instrument, then that agreement, 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, the term individual agreement-based transitional instrument has the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .
626 Subitem (3) in effect preserves the transferring employee's position under the individual agreement-based transitional instrument after transition. However, the coverage of the employee under the agreement after transition may cease in accordance with subitem (4).
627 Subitem (4) sets out procedures for shifting transferring employees covered by an individual agreement-based transitional instrument 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 individual agreement-based transitional instrument) 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.
630 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 2009 ) 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
631 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.
632 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 certain industrial instruments.
633 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.
634 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.
635 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
636 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;
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 person becomes a new employee and takes effect from the time a person becomes a new employee.
637 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.
638 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 2009 ) as apply to transferring employees under subitem (2).
Section 58 of the Fair Work Act 2009
639 This provision qualifies the operation of subitems (2), (4) and (7) by declaring that any shift to an enterprise agreement is subject to section 58 of the Fair Work Act 2009 which generally requires that only one enterprise agreement can apply to an employee at a particular time.
Delegation
640 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
641 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
642 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
643 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
644 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.
645 This is consistent with the integration of Centrelink into the Department.
Item 70 Transitional—responsibility for Commonwealth resources
646 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
647 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.
648 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
649 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
650 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
651 This item has been included to avoid any doubt about the validity of directions under section 8(1)(c) of the Commonwealth Services Delivery Agency Act 1997 made before the transition time. Section 8(1)(c) is repealed by item 27.
Item 75 Transitional - regulations setting out protected symbol
652 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.
653 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 )
654 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 2 Subsection 4(1)
655 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.
656 This repeal is consequential on the creation by this Bill of a new statutory office of Chief Executive Centrelink.
Item 3 Subsection 4(1)
657 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.
658 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 )
659 This item repeals the existing definition of “employee” in section 4(1) of the Child Support (Registration and Collection Act 1988 because the first paragraph of that definition dealt with the use of that term in the Act in relation to the Commonwealth Services Delivery Agency (Centrelink). This deletion is consequential on the abolition of Centrelink by this Bill.
660 This item inserts a new definition of “employee” as follows:
Employee , when used in Part IV, VI or IX, means a person who receives, or is entitled to receive, work and income support related withholding payment.
661 The term “employee” is used in two contexts in the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 . First, it is used in Parts IV, VI and IX of the Child Support (Registration and Collection) Act 1988 to refer to a person who receives or is entitled to receive work and income support related withholding payments. Secondly, it is used in the rest of the Child Support (Registration and Collection) Act 1988 and in the Child Support (Assessment) Act 1989 to refer to an APS employee.
662 This item clarifies that where the term “employee is used in Parts IV, VI or XI of the Child Support (Registration and Collection) Act 1988 , it means a person who receives or is entitled to receive work and income support related withholding payments.
663 It is not necessary to define “employee” when it is referring to an APS employee because this general use of the term is defined in the Acts Interpretation Act 1901 .
Item 5 Subsection 4(1)
664 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. Medicare program is used in this Act in relation to the communication of protected information (see the notes to item 11 of Schedule 3 for more detail).
Item 6 Subsection 4(1) (definition of service arrangements )
665 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.
666 The term will no longer be used in the Act.
Item 7 Subsection 4(1) (definition of Services Delivery Agency )
667 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)
668 This item repeals subsection 10(2) dealing with the position of the Child Support Registrar. This item substitutes new subsections (2), (3) and (4).
669 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.
670 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.
671 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.
672 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.
673 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
674 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).
675 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.
676 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)
677 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.
678 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.
679 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 10A Paragraph 16(2AAA)
680 As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use. It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions.
681 Under section 16(3)(f) of the Child Support (Registration and Collection) Act 1988 , the Child Support Registrar, or a person authorised by the Child Support Registrar, may communicate protected information if the person to whom the information relates authorises the communication. That is, customer information can be disclosed with the consent of the customer.
682 However, currently there is no provision in section 16 of the Child Support (Registration and Collection) Act 1988 to “make a record of” protected information about a person where the person to whom the information relates consents to that record being made. Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the child support program for other programs.
683 Item 10A of Schedule 3 inserts a new subsection 16(2AAA) into the Child Support (Registration and Collection) Act 1988 , which ensures that it is not an offence for a person to make a record of information, if it is done with the express or implied authorisation of the person to whom the information relates.
684 This item ensures that a customer who receives services under the child support program can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services . It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.
Item 11 Paragraphs 16(3)(ba) and (bb)
685 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 which is communicated to another person in accordance with section 16.
686 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; and
· 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.
687 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.
688 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.
689 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.
690 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.
691 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.
692 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 MA 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 a legislative instrument made by the Minister under the Human Services (Medicare) Act 1973 .
· It is intended that the programs currently delivered by Medicare Australia that are not specified above will be specified in a legislative instrument as medicare programs.
Item 12 Paragraph 16(4C)(d)
693 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".
694 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.
695 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 )
696 Section 16AA(1) makes it an offence - subject to the qualifications set out in the section - to record, use or communicate "relevant information".
697 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
698 This item inserts new section 16AB (“multiple secrecy provisions”) into the Child Support (Registration and Collection) Act 1989 . New section 16AB sets out how secrecy laws apply in a situation where the Department of Human Services holds the same piece of information that it has obtained under two or more program Acts. The new section will apply equally to information collected prior to 1 July 2011 and information obtained after 1 July 2011.
699 The effect of the multiple secrecy provisions is that where the Department of Human Services holds the same piece of information about a particular person under more than one program Act (such as child support and Medicare), the Department of Human Services is able to use and disclose that information if it complies with one of the secrecy provisions applicable to that information.
700 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 the Department of Human Services (child support program) and Centrelink, in some specific situations it is possible that the Department of Human Services may be able to disclose the address to another person, but Centrelink may be prevented by secrecy provisions from disclosing the same information.
701 Some of the secrecy provisions in program Acts impose restrictions on what recipients of protected information can do with the information. These are known as “secondary use and disclosure restrictions”. Secondary use and disclosure restrictions apply equally to non-government and government recipients of information, even though government recipients may also be subject to another secrecy regime once they receive the information.
702 In the situation where there is an authorised use of protected information obtained under one program for the purposes of another program, it is possible that secondary use and disclosure restrictions may apply. Without the multiple secrecy provision, there is a risk that a Department of Human Services officer would be required to comply with two sets of secrecy provisions (or, alternatively, there is potential for legal uncertainty as to which secrecy rules apply).
703 The multiple secrecy provision will operate so that, where a particular item of information about a person is transferred between programs delivered by the Department of Human Services (where both programs are covered by different secrecy provisions), any secondary use and disclosure restrictions in one Department of Human Services program secrecy provision will not operate to limit the use or disclosure of that information by Department of Human Services officers, where that is authorised by another of the Department of Human Services program secrecy provisions. The secondary use and disclosure restrictions would continue to apply to information that was disclosed to any entity other than Department of Human Services.
704 New subsection 16AB specifies that the multiple secrecy provision applies to particular information if that information is subject to a regulatory regime under two “designated program Acts”, which are specified in subsection 16AB(3).
705 In identifying whether particular information is subject to regulatory regime under a designated program Act, the fact that the information is subject to a regulatory regime under another designated program Act is disregarded. Without this provision, it may be difficult to apply the multiple secrecy provision in practice. This is because, in some cases, a court may consider that two program Acts that regulated the same information in different ways were inconsistent, and may therefore decide that only one of those Acts could apply in the circumstances.
706 New subsection 16AB(2) is the main operative part of the provision. If the Secretary of the Department of Human Services, the Child Support Registrar or a Department of Human Services employee discloses, uses or makes a record of protected information without contravening the first program Act, that action does not contravene the second program Act.
707 The multiple secrecy provision can apply “successively” in a situation where three or more sets of secrecy provisions apply to the same piece of information. In that situation, the provision could be applied to two or more pairs of secrecy provisions. For example, if secrecy provisions A, B and C apply to the same piece of information and the Department of Human Services sought to rely on secrecy provision A, then the multiple secrecy provision would be applied to secrecy provisions A and B, and then A and C.
708 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.
709 Additional Acts may become “designated program Acts” by being specified in a legislative instrument. This power to specify 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. Using a legislative instrument to specify “designated program Acts” will enable arrangements for the delivery of new programs to be put in place quickly, when required.
710 A legislative instrument made for the purposes of section 16AB(3) will be subject to disallowance.
Item 15 Subparagraphs 94(1)(a)(iii) and (iv)
711 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".
712 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).
713 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)
714 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."
715 Those changes are consequential on the amendments to section 94 and on this Bill's abolition of Centrelink.
Item 17 Paragraph 95(2)(b)
716 This item amends paragraph 95(2)(b) by replacing the reference to "a Secretary or the CEO" with a reference to "the Secretary".
717 This change is consequential on the abolition of the statutory office of Chief Executive Officer and the integration of the functions performed by Centrelink into the Department of Human Services.
Schedule 4 — Consequential amendments
Part 1 — General amendments
Aged Care Act 1997
Item 1 Paragraph 86-3(c)
718 This items amends the paragraph by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Medicare".
719 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)
720 This item amends the paragraph by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".
721 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
722 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".
723 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.
724 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.
725 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 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)
726 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".
727 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.
728 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)
729 This item amends this provision by replacing references to the "CEO" (meaning the Chief Executive Officer of Centrelink) with references to "Chief Executive Centrelink".
730 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)
731 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.
732 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.
733 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)
734 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.
735 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.
736 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)
737 This item repeals paragraph 96-2(7)(b) and substitutes a provision replacing the reference to "CEO" with a reference to "Chief Executive Centrelink".
738 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.
739 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.
740 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 )
741 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 )
742 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
743 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
744 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 )
745 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 )
746 This item repeals the definition of "Services Delivery Agency" (Centrelink) by reference to the CSDA Act because this Bill repeals the provisions of that Act which establish Centrelink.
Age Discrimination Act 2004
Item 16 Section 5
747 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)
748 These items amend these provisions by replacing references to "Chief Executive Officer" with references to "Chief Executive Medicare".
749 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 )
750 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.
751 This change is consequential on the abolition of Medicare Australia and Centrelink.
Item 20 Subsection 3(1)
752 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.
753 This definition is used in provisions of the Act amended by this Bill which deal with disclosure, use and recording of information, and with parties to SSAT proceedings.
Item 21 Subsection 3(1)
754 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)
755 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 )
756 This item amends the definition of "head" (as it applies to Centrelink and Medicare Australia as separate agencies) 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.
757 These changes are consequential on the abolition of Medicare Australia and Centrelink and on the abolition of the statutory offices of Chief Executive Officer of Medicare Australia and Chief Executive Officer of Centrelink.
Items 24 and 25 Subsection 3(1)
758 Item 24 inserts a definition of "Human Services Department" as the Department administered by the Human Services Minister. Item 25 inserts a definition "Human Services Minister" as the Minister administering the Human Services (Centrelink) Act 1997 .
759 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)
760 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.
761 This definition is used in provisions of the Act amended by this Bill which deal with disclosure, use and recording of information, and with parties to SSAT proceedings.
Item 27 Subsection 3(1) (after paragraph (a) of the definition of officer )
762 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 )
763 This item repeals two of the paragraphs of this subsection's definition of "protected information" and substitutes three new paragraphs (a), (aa) and (b).
764 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.
765 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.
766 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".
767 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".
768 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)
769 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.
770 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.
771 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.
772 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.
773 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 29A and 42A Subsection 109C(2) and 221(2)
774 Item 19 of Schedule 4 amends the definition of “agency” in the A New Tax System (Family Assistance) (Administration) Act 1999 so that it includes the Department of Human Services.
775 Items 29A and 42A make consequential amendments to subsections 109C(2) and 221(2) (respectively). Items 29A and 42A do not make a substantive change to these subsections.
776 Item 29A substitutes the reference to “officer of an agency other than the Department” with “officer of the Human Services Department”.
777 Item 42A substitutes the reference to “officer of an agency other than the Department, unless the head of the agency” with “officer of the Human Services Department, unless the Secretary of the Human Services Department”.
Item 30 Subsection 109C(2)
778 This item replaces the reference to "head of agency" with a reference to the "Secretary of the Human Services Department".
779 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)
780 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).
781 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.
782 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).
783 The new subsection 111(1A) adds decisions of the Chief Executive Centrelink and Chief Executive Medicare as decisions subject to SSAT review.
784 These changes will not change the kind of decisions which are subject to SSAT review.
785 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)
786 Subsection 118(1) provides who are the parties to a review by the SSAT.
787 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. This item also repeals paragraph 118(1)(e) which makes the Chief Executive Officer of Medicare Australia party to SSAT review of decisions made by an officer of Medicare Australia.
788 The reason for repealing paragraphs 118(1)(c) and 118(1)(e) is that they are no longer required.
Item 33 Subdivision B of Division 3 of Part 5 (heading)
789 This item repeals the heading "Submissions from parties other than agency heads" and substitutes "Submissions from parties other than agency representatives". This change reflects the amendments of the provisions in the Subdivision.
Item 34 At the end of section 122A
790 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.
791 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).
792 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.
793 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)
794 This item repeals the heading "Submissions from parties other than agency heads" with "Submissions from parties other than agency representatives". This change reflects the amendments of the provisions in the Part.
Item 36 Subsection 126A(1)
795 This item repeals subsection 126A(1) and substitutes a new subsection 126A(1).
796 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.
797 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.
798 The new subsection calls these persons "agency representatives".
Items 37 - 39
799 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)
800 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.
801 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".
802 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 41 Subsection 144(1C)
803 This item repeals subsection 144(1C) and substitutes a new subsection 144(1C).
804 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.
805 These changes will not change the kind of decisions which are subject to AAT Review.
806 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.
Items 41A and 28A Subsection 162(2) and new definition
807 The secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 all regulate the handling of information by reference to definitions of “protected information”. These definitions of “protected information”, which on their face are very broad, currently encompass information about a person held in the records of Centrelink.
808 As Centrelink will no longer exist as an agency from 1 July 2011, these definitions of protected information require amendment. The amendments in items 28, 476, 477, 478, 561, 562, 563, 564, 565, 566 and 614 of Schedule 4 change the definitions of “protected information” in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 so that, in each case, “protected information” encompasses information about a person held by the Department of Human Services for the purposes of the relevant law.
809 The intention of the amendments to the secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 is to ensure that, from 1 July 2011, the Department of Human Services can handle information held under social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 in the same way as Centrelink currently handles such information. There is no intention to either expand or reduce the requirements on officials in relation to the handling of this type of information. As noted in the former Minister of Human Services’ speech announcing service delivery reform on 16 December 2009, no more customer information will be shared between different programs under service delivery reform than occurred at the time the reform was announced, except with customer consent.
810 Item 41A amends section 162(2) to expressly allow information obtained for the purposes of the family assistance law to be used for the purposes of the social security law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973. This is consistent with how the provisions of the family assistance law are currently administered. As well as ensuring that current arrangements in relation to the handling of customer information can continue from 1 July 2011, the amendments also improve the clarity of the operation of the secrecy provisions in the family assistance law.
811 Item 28A inserts a definition of “social security law” in A New Tax System (Family Assistance) (Administration) Act 1999 . This amendment is consequential on item 41A.
Item 42 At the end of paragraph 168(1)(b)
812 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.
813 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.
814 This item amends paragraph (1)(b) by adding new paragraphs authorising disclosure to:
· the Chief Executive Centrelink for the purposes of a “centrelink program”, as defined by new section 40 of the renamed Human Services (Centrelink) Act 1997 , which is inserted by item 48 of Schedule 2 (new paragraph (1)(b)(iii)); and
· to the Chief Executive Medicare for the purposes of a “medicare program”, as defined by new section 41G of the renamed Human Services (Medicare) Act 1973 , which is inserted by item 82 of Schedule 1 (new paragraph (1)(b)(iv)).
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 Secretary is authorised to make disclosures of information in relation to centrelink and medicare programs.
Items 43 and 44 Subsection 221(3)
817 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.
818 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". In addition, the definition of “agency” is amended to include the Department of Human Services.
819 These items amend subsection 221(3) by extending the exception so that it applies to "the Secretary of the Human Services Department, the Chief Executive Centrelink or the Chief Executive Medicare."
820 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.
821 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)
822 This item repeals section 234(3). This subsection is no longer required given the overarching ability for the Secretary of the Department of Human Services to enter into agreements with the Secretaries of other Departments about the performance of the Chief Executive Medicare’s functions under the new section 7A of the renamed Human Services (Medicare) Act 1973 .
823 The renamed Human Services (Centrelink) Act 1997 contains an equivalent provision (section 8A) under which the Secretary of the Department of Human Services may enter into agreements with the Secretaries of other Departments about the performance of the Chief Executive Centrelink’s functions.
Item 46 NOT USED
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Item 47 Section 5 (paragraphs (i) and (j) of the definition of designated agency )
824 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".
825 This amendment reflects the previous integration of the Child Support Agency into the Department of Human Services through administrative action, and 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
826 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 .
827 The defined term "Human Services Department" is used in the section 5 definition of "designated agency" as amended by this Schedule.
828 Under section 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.
829 It is expected that this power would 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)
830 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".
831 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 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.
832 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.
833 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 50A Subsection 150(2A)
834 As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use. It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions.
835 Under section 150(3)(f) of the Child Support (Assessment) Act 1989 , the Child Support Registrar, or a person authorised by the Child Support Registrar, may communicate protected information if the person to whom the information relates authorises the communication. That is, customer information can be disclosed with the consent of the customer.
836 However, currently there is no provision in section 150 of the Child Support (Assessment) Act 1989 to “make a record of” protected information about a person where the person to whom the information relates consents to that record being made. Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the child support program for other programs.
837 Item 50A of Schedule 4 inserts a new subsection 150(2A) into the Child Support (Assessment) Act 1989 , which ensures that it is not an offence for a person to make a record of information, if it is done with the express or implied authorisation of the person to whom the information relates.
838 This item ensures that a customer who receives services under the child support program can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services . It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.
Item 51 Paragraphs 150(3)(ba) and (bb)
839 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.
840 This item repeals these paragraphs and substitutes new paragraphs.
841 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".
842 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.
843 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.
844 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)
845 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".
846 The amendment 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.
847 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 )
848 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.
849 These changes reflect the fact that the Child Support Agency is not an agency separate from the Department.
Item 54 Subsection 151A(1)
850 This item repeals the subsection and substitutes another subsection.
851 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".
852 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)
853 This item repeals the subsection and substitutes another subsection.
854 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".
855 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 )
856 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".
857 This change is consequential on the abolition of Centrelink as a separate agency.
Item 57 Subsection 3(1) (definition of CEO )
858 This item repeals the definition of "CEO" as the Chief Executive Officer of the "Services Delivery Agency" (Centrelink).
859 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)
860 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 )
861 This item repeals this definition of employee in relation to the "Services Delivery Agency" (Centrelink).
862 This repeal is consequential on the abolition of Centrelink as a separate agency.
Items 60 and 61 Subsection 3(1)
863 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 .
864 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 )
865 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).
866 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 )
867 This item amends subsection 3(1) by replacing the reference to "Services Delivery Agency" with "Human Services Department".
868 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 )
869 This item repeals the definition of "Services Delivery Agency" (Centrelink).
870 This change is consequential on the abolition of Centrelink (the Services Delivery Agency).
Item 65 Paragraph 3A(1)(a)
871 This item repeals the paragraph and substitutes another paragraph.
872 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".
873 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)
874 This item repeals the subsection and substitutes another subsection.
875 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).
876 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)
877 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).
878 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.
879 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
880 These items amend the legislative provisions in the table below by replacing references to "Medicare Australia CEO" with references to "Chief Executive Medicare".
881 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 )
882 This item amends this provision by replacing the reference to "Medicare Australia CEO" with a reference to "Chief Executive Medicare".
883 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
884 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
885 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 )
886 This item repeals this definition because this Bill abolishes Medicare Australia.
Items 73 and 74 Section 4
887 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 .
888 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 )
889 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
890 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.
891 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
892 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 |
893 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)
894 Subsection 34(1) imposes duties not to disclose "protected information" on "entrusted public officials" as identified in subsection (2).
895 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", a "Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ) and "a consultant to the Human Services Department".
896 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)
897 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."
898 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.
899 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
900 This item amends these legislative provisions by replacing references to "Medicare Australia CEO" with references to "Chief Executive Medicare".
901 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)
902 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"; and
· replace a reference to "the Minister who administers …the Medicare Australia Act 1973 ” with a reference to "the Minister who administers … the Human Services (Medicare) Act 1973 ”.
903 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.
904 Paragraph (d) authorises disclosure to the Secretary of, and APS employees in, a Department administered by the Minister who administers the Human Services (Medicare) Act 1973 (as amended by this Bill), if the disclosure is for the purpose of administering the Dental Benefits Act 2008 .
905 The amendments to section 41 will not otherwise substantially alter the operation of section 41.
Item 87 Subsection 41(2) (definition of Centrelink )
906 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 )
907 This item repeals this definition because the term will no longer be used in the Act. The Bill abolishes Centrelink.
Items 89 - 91
908 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 |
909 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)
910 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".
911 Item 93 replaces a reference to the "Medicare Australia CEO" with a reference to the "Chief Executive Medicare."
912 Item 94 replaces a reference to the " Medicare Australia Act 1973 " with a reference to the " Human Services (Medicare) Act 1973 ."
913 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.
Item 94A Paragraph 28(5)(d)
914 As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use. It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions.
915 Under paragraph 28(5)(c) of the Disability Services Act 1986 , a person may divulge information obtained in the course of performing duties under the Disability Services Act 1986 if the person to whom the information relates authorises that to occur.
916 However currently there is no provision in section 28 of the Disability Services Act 1986 to make a record of protected information about a person where the person to whom the information relates consents to that record being made. Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the Disability Services Act 1986 for other programs.
917 Item 94A inserts a new paragraph 28(5)(d) into the Disability Services Act 1986 , which ensures that it is not an offence for a person to make a record of information under that Act, if it is done with the express or implied authorisation of the person to whom the information relates.
918 Item 94A ensures that a customer who receives disability services can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services . It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.
Farm Household Support Act 1992
Item 95 Subsection 3(2) (definition of Agency )
919 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 )
920 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)
921 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 )
922 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)
923 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 .
924 The defined term "Human Services Department" is used in section 53A, as amended by this Schedule, relating to powers to require production of documents and information.
Item 101 Subsection 3(2) (definition of service arrangements )
925 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)
926 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.
927 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 )".
928 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.
929 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)
930 This item repeals this subsection dealing with the exercise of delegated power to order production of documents or information and substitutes a new subsection.
931 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 )."
932 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)
933 This item omits the reference to "Agency" and inserts a reference to the "Human Services Department."
934 This change is consequential on the abolition of Centrelink ("the Agency").
Item 105 Paragraph 53A(4)(a)
935 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 )."
936 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)
937 This item amends the paragraph by replacing the reference to "CEO" with "Chief Executive Centrelink".
938 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)
939 This item omits the reference to "Agency" and inserts a reference to the "Human Services Department."
940 This change is consequential on the abolition of Centrelink ("the Agency").
Freedom of Information Act 1982
Item 108 Subsection 4(1)
941 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)
942 Item 109 inserts a definition "Human Services Department" as the Department administered by the Human Services Minister. Item 110 inserts a definition of "Human Services Minister" as the Minister administering the Human Services (Medicare) Act 1973 .
943 The defined term "Human Services Department" is used in Division 1 of Part II of Schedule 2 as amended by this Schedule. Division 1 of Part II of Schedule 2 of the Freedom of Information Act 1982 relates to "Agencies exempt in respect of particular documents".
Item 111 Division 1 of Part II of Schedule 2 (before the item relating to Indigenous Business Australia)
944 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. This amendment is consequential on the abolition of Medicare Australia as a separate agency. It is not intended to expand the scope of the exemption.
Item 112 Division 1 of Part II of Schedule 2 (the item relating to Medicare Australia)
945 This item repeals the item referring to Medicare Australia and documents relating to its commercial activities.
946 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
947 This item provides that the amendment to Division 1 of Part II of Schedule 2 made by item 111 is to have effect as if that Division 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).
948 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)
949 This item amends the paragraph by replacing the reference to "Chief Executive Officer of the Commonwealth Services Delivery Agency" with "Chief Executive Centrelink".
950 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)
951 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)
952 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 )
953 This item repeals this definition because the Bill abolishes Medicare.
Item 118 Subsection 3(1) (definition of Medicare Australia CEO )
954 This item amends the paragraph by replacing the reference to "Chief Executive Officer" with a reference to "Chief Executive Centrelink".
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 Centrelink.
Items 119 - 135, except Item 134
956 These items amend the provisions referred to in the table below by replacing references to the "Medicare Australia CEO" with references to the "Chief Executive Medicare".
|
Item |
Legislative Provision |
|
119 |
Paragraph 8(6)(a) |
|
120 |
Paragraph 10(6)(a) |
|
121 |
Sections 13 to 18 |
|
122 |
Subsection 19(1) |
|
123 |
Subsection 19(1) |
|
124 |
Subsection 19(3) |
|
125 |
Paragraph 19(3)(d) |
|
126 |
Subsection 19(4) |
|
127 |
Sections 21 to 26 |
|
128 |
Section 28 |
|
129 |
Sub-section 32(1) |
|
130 |
Sections 33C to 33H |
|
131 |
Subsection 33K(1) |
|
132 |
Sections 34 to 36 |
|
133 |
Section 39 |
|
135 |
Subsection 40(2) |
957 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 134 Subsection 40(1)
958 This item repeals this subsection and substitutes a new subsection which replaces the reference to "Medicare Australia CEO" with "Chief Executive Medicare".
959 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)
960 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)
961 This items amends the subsection conferring power to delegate by replacing the reference to "Medicare Australia CEO" with "Chief Executive Medicare".
962 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)
963 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.
964 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)
965 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.
966 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)
967 This item repeals these paragraphs conferring powers of delegation and substitutes new paragraphs (b) and (c).
968 In paragraph (b) 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 of Medicare Australia and the creation of a new statutory office of Chief Executive Medicare.
969 In paragraph (c), the reference to “an employee of Medicare Australia” is replaced with “a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ”. 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 141 Subsection 42(1)
970 This items amends the paragraph by replacing references to "Medicare Australia CEO" with "Chief Executive Medicare".
971 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 142 Subsection 42(3) (paragraph (a) of the definition of authorised officer )
972 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 )
973 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.
974 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 )
975 This items amends the paragraph by replacing the reference to "Medicare Australia CEO" with "Chief Executive Medicare".
976 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
977 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) |
978 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
979 These items amend these provisions by replacing references to "Medicare Australia CEO" with "Chief Executive Medicare".
980 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.
Health and Other Services (Compensation) Care Charges Act 1995
Items 150 and 151 Paragraph 6(6)(a), Paragraph 8(6)(a)
981 These items amend the legislative provisions by replacing references to "Medicare Australia CEO" with "Chief Executive Medicare".
982 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.
Healthcare Identifiers Act 2010
Item 152 Section 5
983 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
984 Item 153 inserts a definition "Human Services Department" as the Department administered by the Human Services Minister. Item 154 inserts a definition of "Human Services Minister" as the Minister administering the Human Services (Medicare) Act 1973 .
985 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
986 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 )
987 This item amends the paragraph by replacing the reference to "Chief Executive Officer of Medicare Australia with "Chief Executive Medicare".
988 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)
989 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".
990 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)
991 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.
992 The intent of this provision is to exclude from the disclosure authorisation in subsection 12(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 )
993 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.
994 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)
995 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.
996 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)
997 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 )
998 This item repeals this definition because the Bill abolishes Centrelink.
Item 163 Subsection 3(1) (definition of employee of Medicare Australia )
999 This item repeals this definition because the Bill abolishes Medicare Australia.
Items 164 and 165 Subsection 3(1)
1000 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 )
1001 This item repeals the definition because this Bill abolishes the statutory office of Chief Executive Officer of Medicare Australia.
Item 167 Subsection 3(1)
1002 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
1003 These items 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 |
|
168 |
Subsection 3D(1) |
|
169 |
Subsection 3D(3) |
|
170 |
Paragraph 3DA(3)(a) |
|
171 |
Subsections 3EA(1) to (6) |
|
172 |
Subsection 3EA(7) (definition of authorised officer ) |
|
173 |
Section 3EB |
|
174 |
Subsections 3F(2), (4), (7), (8) and (9) |
|
175 |
175 Subsection 3F(10) |
|
176 |
Sections 3G to 3GB |
|
177 |
Subsections 10AA |
|
178 |
Sections 10AC to 10AE |
|
179 |
Subparagraphs 16B(7)(e)(i) |
|
180 |
Subparagraph 16B(11)(d)(i) |
|
181 |
Paragraph 19AB(6)(b) |
|
182 |
Subsection 19AB(6) |
|
183 |
Subsection 19D(12) |
|
184 |
Sections 20 to 20AB |
|
185 |
Subsection 20AC(1) |
|
186 |
Subsection 20AC(2) |
|
187 |
Paragraph 20AC(2)(a) |
|
188 |
Paragraph 20AC(2)(b) |
|
189 |
Subsections 20AC(3) to (5) |
|
190 |
Subsections 20AD(1) to (3) |
|
191 |
Subsection 20AD(4) |
|
192 |
Subsection 20AD(5) |
|
193 |
Section 20B |
|
194 |
Paragraph 20BA(1)(e) |
|
195 |
Subsection 20BA(2) |
|
196 |
Subsection 20BA(3) |
|
197 |
Paragraph 20BA(3)(c) |
|
198 |
Paragraph 20BA(3)(d) |
|
199 |
Subsection 20BA(4) |
|
200 |
Subsection 20BA(5) |
|
201 |
Paragraphs 23DK(1A)(c) and (2A)(c) |
|
202 |
Subsection 23DK(3) |
|
203 |
Subsection 23DK(4) |
|
204 |
Subsection 23DKA(4) |
|
205 |
Subsection 23DKA(5) |
|
206 |
Paragraphs 23DKA(7)(a) and (b) |
|
207 |
Subsection 23DR(2) |
|
208 |
Subsection 23DR(3) |
|
209 |
Subsection 23DS(4) |
|
210 |
Subsection 23DS(5) |
|
211 |
Paragraphs 23DS(7)(a) and (b) |
|
212 |
Sections 23DSC and 23DSD |
|
213 |
Paragraph 23DZZIK(3)(a) |
|
214 |
Paragraph 23DZZIL(3)(a) |
|
215 |
Paragraph 23DZZIM(3)(a) |
|
216 |
Paragraph 23DZZIQ(7)(a) |
|
217 |
Paragraph 23DZZIR(5)(a) |
|
218 |
Paragraph 23DZZIS(5)(a) |
|
219 |
Section 46A (paragraph (b) of the definition of information relating to a child’s Australian immunisation encounter ) |
|
220 |
Section 46A (definition of recognised immunisation provider ) |
|
221 |
Section 46B |
|
222 |
Paragraphs 46B(b) and (d) |
|
223 |
Sections 46C and 46D |
|
224 |
Subsection 46E(1) |
|
225 |
Paragraph 46E(1)(c) |
|
226 |
Subsection 46E(2) |
|
227 |
Subsection 80(3) |
|
228 |
Subsection 81(1) (paragraph (a) of definition of review period ) |
|
229 |
Division 3 of Part VAA (heading) |
|
230 |
Subsection 86(1) |
|
231 |
Subsection 87(1) |
|
232 |
Subsection 88(1) |
|
233 |
Subsection 88(3) |
|
234 |
Section 88A |
|
235 |
Sections 89 and 89A |
|
236 |
Subsection 91(2) |
|
237 |
Paragraph 92(4)(c) |
|
238 |
Subsection 93(7) |
|
239 |
Paragraphs 105(1)(b) and 2(b) |
|
240 |
Paragraph 106G(b) |
|
241 |
Subsections 106J(2) and (3) |
|
242 |
Subsection 106KB(2) |
|
243 |
Section 106KC |
|
244 |
Subparagraph 106KE(1)(b)(iii) |
|
245 |
Subsection 106L(5)(a)(iii) |
|
246 |
Subsection 106N |
|
247 |
Section 106W |
|
248 |
Subsection 106ZPM(3) |
|
249 |
Paragraph 124EC(b) |
|
250 |
Section 124EC |
|
251 |
Subsection 125A(1) |
|
252 |
Paragraph 125D(b) |
|
253 |
Subsection 129AAC(1) |
|
254 |
Section 129AC |
|
255 |
Section 129AF |
|
257 |
Subsections 130(3) and (3A) |
|
258 |
Paragraph 130(3D)(a) |
|
259 |
Paragraph 130(4A)(a) |
|
260 |
Subsection 130(5) |
|
261 |
Subsection 130(5E) |
|
262 |
Subsection 130(6) |
|
263 |
Paragraph 130(6)(ca) |
|
264 |
Paragraph 130(6)(f) |
|
265 |
Subsection 130(7) |
|
267
|
Paragraph 130(7)(h)
|
|
268 |
Paragraph 130(9)(aa) |
|
273 |
Subsections 131(1) to (3) |
|
274 |
Subsection 131(4) (paragraphs (b) and (c) of the definition of officer ) |
Item 256 Subsection 130(1)
1004 Under the heading Officers to observe secrecy section 130(1) makes it an offence - subject to detailed exceptions - for a person who is or has been an "officer" "to make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act".
1005 This item replaces a current exception for things done for the purpose of enabling a person to perform functions "under the Medicare Australia Act 1973 " with an exception expressed to be for things done for the purpose of enabling a person to perform functions "in relation to a medicare program".
1006 The programs which are covered by the section 41G definition of "medicare programs" inserted by this Bill in the MA Act are co-extensive with the functions currently performed by the Chief Executive Officer under the Medicare Australia Act 1973 in its current form.
1007 The amendment of this aspect of subsection 130(1) corresponds to the definition of "officer" subsection (25) as amended by item 268 of this Schedule.
Item 257A Subsection 130(3AA)
1008 As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use. It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions.
1009 Under paragraph 130(3)(c) of the Health Insurance Act 1973 , a person may divulge information obtained in the course of performing duties under the Health Insurance Act 1973 if the person to whom the information relates authorises that to occur.
1010 However currently there is no provision in section 130 of the Health Insurance Act 1973 to make a record of protected information about a person where the person to whom the information relates consents to that record being made. Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the Medicare program for other programs.
1011 Item 257A inserts a new subsection 130(3AA) into the Health Insurance Act 1973 , which ensures that it is not an offence for a person to make a record of information under that Act, if it is done with the express or implied authorisation of the person to whom the information relates.
1012 Item 257A ensures that a customer who receives services under the Health Insurance Act 1973 can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services . It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.
Item 266 Paragraph 130(7)(e)
1013 This item omits the reference to "CEO or an employee of Centrelink" and substitutes "Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 )."
1014 This change is 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 269 Subsection 130(25) (definition of officer)
1015 This item amends the definition of "officer" for the purposes of this section by replacing the reference to a person performing duties, or exercising powers or functions, under or in relation to the MA Act with a reference to persons performing duties, or exercising powers or functions, under or in relation to a "medicare program".
1016 The purpose of this amendment is to prevent any suggestion that following amendment and renaming of the Human Services (Medicare) Act 1973 all Department of Human Services employees are "officers" for purposes of section 130. The amendment made by this item limits the definition of "officer" to those employees of the Department who have involvement in a medicare program.
Item 270 Subsection 130G(1)
1017 Subsection 130G requires the courts to take judicial notice of a signature of the Centrelink CEO or an employee of Centrelink on a document as prima facie evidence of the facts and statements contained in the document. This item amends subsection 130G(1) by replacing the reference to "Centrelink CEO" with a reference to "Chief Executive Centrelink".
1018 This change is consequential on the abolition of the statutory office of Centrelink CEO and the creation of a new statutory office of Chief Executive Centrelink.
Item 271 Subsection 130G(1)
1019 This item amends subsection 130G(1) to replace the reference to “an employee of Centrelink” with “a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) ”.
1020 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 272 Transitional - signature of Centrelink CEO or employee of Centrelink
1021 Item 272 inserts a transitional provision to ensure that, despite the amendments to section 130G made by this Bill, section 130G applies to the signature of a person who held the office of the Centrelink CEO before the commencement of this item, or was an employee of Centrelink before the commencement of this item, as if the amendments to section 130G had not been made.
Item 275 Subsection 131A(1)
1022 This item repeals the section as this Bill abolishes Centrelink.
Hearing Services Administration Act 1997
Item 276 Section 4
1023 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 277 Subsection 21(10) (paragraph (d) of the definition of body )
1024 This item repeals the section and substitutes a new section which replaces the reference to the "Chief Executive Officer of Medicare Australia" with "the Chief Executive Medicare".
1025 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.
Higher Education Support Act 2003
Item 278 Paragraph 46-20(2)(m)
1026 This item omits the reference to "or the Chief Executive Officer, or an employee, of Centrelink" and substitutes ", the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) ".
1027 This change is 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 Centrelink and on the abolition of Centrelink as a separate agency with service delivery through the Department of Human Services.
Item 279 Subclause 1(1) of Schedule 1 (definition of Centrelink )
1028 This item repeals this definition because the term will no longer be used in the Act. The Bill abolishes Centrelink.
Item 280 Subclause 1(1) of Schedule 1
1029 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 281 Subclause 1(1) of Schedule 1 (definition of employee )
1030 This item repeals this definition of employee in relation to the " Commonwealth Services Delivery Agency Act 1997 " (Centrelink).
1031 This repeal is consequential on the abolition of Centrelink as a separate agency.
Income Tax Assessment Act 1936
Item 282 Subsection 6(1)
1032 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.
Items 283 and 284
1033 These items amend the references to "the Chief Executive Officer of the Commonwealth Services Delivery Agency, established by the Commonwealth Services Delivery Agency Act 1997 " with "Chief Executive Centrelink".
1034 These changes are consequential on the abolition of the statutory office of Chief Executive Officer of the Commonwealth Services Delivery Agency and the creation of a new statutory office of Chief Executive Centrelink.
|
Item |
Legislative Provision |
|
283 |
Subsection 202CB(6) |
|
284 |
Subsection 202CE(7) |
Income Tax Assessment Act 1997
Item 285 Subsection 54-40(2) (note)
1035 This item amends the reference to "Centrelink" in subsection 54-40(2) (note) and replaces it with "the Department administered by the Minister administering the Human Services (Centrelink) Act 1997 ".
Medical Indemnity Act 2002
Items 286 - 356, except for Items 286, 287, 289, 290 and 356
1036 These items amend the provisions referred to in the table below:
· by replacing references to "Medicare Australia CEO" or "Medicare 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; and/or
· by replacing references to " Medicare Australia Act 1973 " with references to " Human Services (Medicare) Act 1973 " which will be the name of the Medicare Australia Act 1973 as amended and renamed by this Bill .
|
Item |
Legislative Provision |
|
288 |
Subsection 4(1) (paragraph (c) of the definition of late payment penalty ) |
|
291 |
Subsection 4(1) (definition of qualifying claims certificate ) |
|
292 |
Subsection 10(2) (table item 9) |
|
293 |
Section 13 |
|
294 |
Paragraph 16(1)(f) |
|
295 |
Paragraph 17(1)(g) |
|
296 |
Paragraph 19(b) |
|
297 |
Subsections 23 |
|
298 |
Sections 24 and 25 |
|
299 |
Subsection 26(1) |
|
300 |
Subsections 27(3) and (4) |
|
301 |
Section 27B |
|
302 |
Subsection 28(2) (table item 7) |
|
303 |
Section 34AB |
|
304 |
Subsection 34A(3) (table item 12) |
|
305 |
Subsection 34E(1) |
|
306 |
Subsections 34E(4) and (5) |
|
307 |
Sections 34H and 34I |
|
308 |
Section 34J |
|
309 |
Section 34K |
|
310 |
Section 34L |
|
311 |
Section 34Q |
|
312 |
Subsection 34T(3) |
|
313 |
Paragraph 34T (4)(a) |
|
314 |
Section 34U |
|
315 |
Subsection 34V(1) |
|
316 |
Subsections 34W(3) and (4) |
|
317 |
Section 34Y |
|
318 |
Subsection 34ZA(3) (table items 7 and 13) |
|
319 |
Paragraphs 34ZB(4A)(b) and (4B)(c) |
|
320 |
Paragraph 34ZC(1)(e) |
|
321 |
Subsections 34ZJ(3) |
|
322 |
Paragraph 34ZJ(4)(a) |
|
323 |
Section 34ZK |
|
324 |
Subsection 34ZL(1) |
|
325 |
Subsections 34ZM(3) and (4) |
|
326 |
Section 34ZO |
|
327 |
Section 34ZT |
|
328 |
Section 34ZU |
|
329 |
Subsection 35(2) (table item 3) |
|
330 |
Sections 36 to 37B |
|
331 |
Section 38 |
|
332 |
Sections 39 to 41 |
|
333 |
Section 42 |
|
334 |
Section 44 |
|
335 |
Section 44A |
|
336 |
Section 44B |
|
337 |
Subsections 46(1) and (2) |
|
338 |
Subsection 50(3) (table item 13) |
|
339 |
Paragraph 52(2)(f) |
|
340 |
Section 53 |
|
341 |
Section 56 |
|
342 |
Subsection 57(3) (table item 10) |
|
343 |
Subsection 59A(2) (table item 10) |
|
344 |
Section 59E |
|
345 |
Subsection 60(2) (table item 7) |
|
346 |
Sections 62 to 66 |
|
347 |
Section 66A |
|
348 |
Sections 66B to 68 |
|
349 |
Section 69 |
|
350 |
Section 70 |
|
351 |
Section 71 |
|
352 |
Section 72 |
|
353 |
Subsections 74(1) and (2) |
|
354 |
Section 75 |
|
355 |
Section 76 |
|
|
|
Item 286 Subsection 4(1)
1037 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 287 Subsection 4(1)
1038 This item inserts a new definition "Human Services Minister" to identify the portfolio Minister responsible for the administration of the Human Services (Medicare) Act 1973 .
Item 289 Subsection 4(1) (definition of Medicare Australia CEO )
1039 This item repeals the definition as this Bill abolishes Medicare Australia.
Item 290 Subsection 4(1)
1040 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 356 Subparagraph 77(2)(c)(iii)
1041 Under the heading Officers to observe secrecy section 77 makes it an offence - subject to detailed exceptions - for a person who is an "officer" to deal with protected information in certain ways.
1042 This item repeals this subparagraph which provides an exception if the person dealt with the information for the purpose of enabling a person to perform functions "under the Medicare Australia Act 1973 " and substitutes a subparagraph which refers to a purpose of enabling a person to perform functions under "a medicare program".
1043 The programs which are covered by the section 41G definition of "medicare programs" inserted by this Bill in the Medicare Australia Act 1973 renamed as the Human Services (Medicare) Act 1973 are co-extensive with the functions performed by the Chief Executive Officer under the Medicare Australia Act 1973 in its current form. Accordingly, this amendment does not widen this exception to section 77.
Item 357 Subsections 77(3) and (4)
1044 This item amends subsections 77(3) and (4) by replacing references to " Medicare Australia CEO" with "Chief Executive Medicare".
1045 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 357A Subsection77(5A)
1046 As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use. It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions.
1047 Under paragraph 77(3)(b) of the Medical Indemnity Act 2002 , a person may divulge protected information if the person to whom the information relates authorises that to occur.
1048 However currently there is no provision in section 77 of the Medical Indemnity Act 2002 to make a record of protected information about a person where the person to whom the information relates consents to that record being made. Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the Medical Indemnity Act 2002 for other programs.
1049 Item 357A inserts a new subsection 77(5A) into the Medical Indemnity Act 2002 , which ensures that it is not an offence for a person to make a record of information under that Act, if it is done with the express or implied authorisation of the person to whom the information relates.
1050 Item 357A ensures that a customer who receives services under the Medical Indemnity Act 2002 can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services . It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.
Medical Indemnity (Prudential Supervision and Product Standards) Act 2003
Item 358 Subsection 4(1)
1051 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 359 Paragraph 26D(2)(b)
1052 This item replaces the reference to "Chief Executive Officer of Medicare Australia" with "Chief Executive Medicare".
1053 This change is 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.
Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010
Items 360 - 418, except for Items 361 and 416
1054 These items amend the provisions referred to in the table below:
· by replacing references to "Medicare Australia CEO" or "Medicare 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 |
|
360 |
Subsection 5(1) (definition of apportionment certificate ) |
|
362 |
Subsection 5(1) (definition of Level 1 qualifying claim certificate ) |
|
363 |
Subsection 5(1) (definition of Level 2 qualifying claim certificate ) |
|
364 |
Subsection 5(1) (definition of Medicare Australia CEO ) |
|
365 |
Subsection 9(3) (table item 2) |
|
366 |
Subsection 9(3) (table item 13) |
|
367 |
Section 11 |
|
368 |
Sections 12 and 13 |
|
369 |
Section 14 |
|
370 |
Section 15 |
|
371 |
Subparagraph 16(1)(c)(ii) |
|
372 |
Subsection 18(1) |
|
373 |
Subparagraph 18(1)(d)(ii) |
|
374 |
Subsection 18(4) |
|
375 |
Section 22 |
|
376 |
Subsection 25 |
|
377 |
Section 26 |
|
378 |
Subsection 27(1) |
|
379 |
Section 28 |
|
380 |
Subsection 29(2) (table items 8 and 14) |
|
381 |
Paragraphs 31(3)(b) and (4)(c) |
|
382 |
Subparagraph 32(1)(c)(ii) |
|
383 |
Paragraph 32(1)(f) |
|
384 |
Section 37 |
|
385 |
Section 38 |
|
386 |
Subsection 39(1) |
|
387 |
Section 40 |
|
388 |
Subsection 45 |
|
389 |
Section 46 |
|
390 |
Subsection 50(2) (table item 1) |
|
391 |
Subsection 50(2) (table item 7) |
|
392 |
Subsection 51(1) |
|
393 |
Subparagraph 51(1)(a)(i) |
|
394 |
Paragraph 51(1)(b) |
|
395 |
Subsections 51(2) to (7) |
|
396 |
Subsection 52(1) |
|
397 |
Sections 53 and 54 |
|
398 |
Section 55 |
|
399 |
|