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Human Services Legislation Amendment Bill 2011

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2010-2011

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

(Circulated by authority of the Minister for Human Services,

the Honourable Tanya Plibersek, MP)

 



GOVERNMENT AMENDMENTS TO THE HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010

OUTLINE

Since the introduction of the Human Services Legislation Amendment Bill , it has been determined that some amendments to certain provisions in the Bill are desirable. 

These amendments:

  • modify the drafting of the “multiple secrecy provisions” introduced by the Bill to the renamed Human Services (Medicare) Act 1973 , the renamed Human Services (Centrelink) Act 1997 and the Child Support (Registration and Collection) Act 1988 , to ensure the provisions are clear and operate as intended;
  • make additional changes to the secrecy provisions in the social security law, family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 to ensure that the current arrangements within Centrelink for the use of customer information collected for the purpose of those programs can continue after the integration of Centrelink into the Department of Human Services.

In addition, it has become clear that some new provisions are required in the Bill.  In particular, the Government amendments introduce new items to the Bill to ensure that customers can consent to information about them being used for a purpose that would not otherwise be authorised by the Act under which the information was obtained.  These amendments support service delivery reform by enabling customers to choose how information about them is managed. 

Transitional provisions relating to the continuation of certain agreements between Medicare Australia and Centrelink, as delivery agencies, and the Departments responsible for the administration of programs would be removed.  It has been determined that the transitional provisions are unnecessary, as the agreements will be continued by exchange of correspondence between Departmental Secretaries. 

Financial impact statement

These amendments have no financial impact.



GOVERNMENT AMENDMENTS TO THE HUMAN SERVICES LEGISLATION AMENDMENT BILL 2010

NOTES ON AMENDMENTS

Amendment (1) [Clause 2 of the Bill (Commencement provisions)]

Context

1                          Amendment (1) inserts new commencement provisions for the new provisions inserted into the Bill by amendments (54) and (55).  Specific commencement arrangements are required for amendments (54) and (55) because the amendments contemplated in these paragraphs are replicated in the Family Assistance and Other Legislation (Child Care and Other Measures) Bill .

Explanation of amendment

2                          Amendment (1) provides that amendment (54) commences on 1 July 2011, unless section 2 of the Family Assistance and Other Legislation (Child Care and Other Measures) Act 2011 commences before the Human Services Legislation Amendment Bill .  In that case, amendment (54) does not commence at all.

3                          Amendment (1) provides that amendment (55) commences immediately after the commencement of section 2 of the Family Assistance and Other Legislation (Child Care and Other Measures) Act 2011 .  However, if the Family Assistance and Other Legislation (Child Care and Other Measures) Act commences before the day the Human Services Legislation Amendment Act receives Royal Assent, the provisions in amendment (55) do not commence at all.

Amendment (2) [Item 82 of Schedule 1 of the Bill (Definition of “medicare programs”)]

Context

4                          Some secrecy provisions, mainly in Medicare Australia program Acts, are premised on the existence of Medicare Australia and Centrelink as separate entities.  The concept of “medicare programs” and “centrelink programs” is used in the Bill to amend these secrecy provisions so that the permitted information flow after the integration is the same as it is currently.

5                          Under proposed section 41G(1)(b) of the (renamed) Human Services (Medicare) Act 1973 ), inserted by item 82 of Schedule 1 of the Bill, new services, benefits, programs or facilities can be specified as “medicare programs” by regulations. 

Explanation of amendment

6                          Amendment (2) amends section 41G(1)(b) by allowing new services, benefits, programs or facilities to be specified as “medicare programs” by legislative instrument made by the Minister for Human Services, rather than regulation.  The legislative instrument will be subject to disallowance. 

7                          The use of legislative instruments, rather than regulations, will enable arrangements for the delivery of new programs to be put in place quickly, when required.

Amendment (3) [Item 87 of Schedule 1 of the Bill (Multiple secrecy provisions) ]

Context

8                          Item 87 of Schedule 1 inserts new section 43A (“multiple secrecy provisions”) into the renamed Human Services (Medicare) Act 1973.  New section 43A sets out how secrecy laws apply in a situation where the Department of Human Services holds the same piece of information that it has obtained under two or more program Acts.  The new section will apply equally to information collected prior to 1 July 2011 and information obtained after 1 July 2011. 

9                          The effect of the multiple secrecy provisions is that where the Department of Human Services holds the same piece of information about a particular person under more than one program Act (such as family assistance and Medicare), the Department of Human Services is able to use and disclose that information if it complies with one of the secrecy provisions applicable to that information. 

10                      Some of the secrecy provisions in program Acts impose restrictions on what recipients of protected information can do with the information.  These are known as “secondary use and disclosure restrictions”.  Secondary use and disclosure restrictions apply equally to non-government and government recipients of information, even though government recipients may also be subject to another secrecy regime once they receive the information.

11                      In the situation where there is an authorised use of protected information obtained under one program for the purposes of another program, it is possible that secondary use and disclosure restrictions may apply.  Without the multiple secrecy provision, there is a risk that a Department of Human Services officer would be required to comply with two sets of secrecy provisions (or, alternatively, there is potential for legal uncertainty as to which secrecy rules apply). 

12                      The multiple secrecy provision will operate so that, where a particular item of information about a person is transferred between programs delivered by the Department of Human Services (where both programs are covered by different secrecy provisions), any secondary use and disclosure restrictions in one Department of Human Services program secrecy provision will not operate to limit the use or disclosure of that information by Department of Human Services officers, where that is authorised by another of the Department of Human Services program secrecy provisions.  The secondary use and disclosure restrictions would continue to apply to information that was disclosed to any entity other than Department of Human Services. 

Explanation of amendments

13                      Amendment (3) amends item 87 of Schedule 1 the Bill by omitting subsections 43A(1) and (2) and substituting new subsections.  Amendment (3) does not change the substantive effect of the multiple secrecy provision.  Rather, it has been redrafted to make it clearer and to overcome a possible technical issue with the original drafting in the Bill.  

14                      New subsection 43A(1) specifies that the multiple secrecy provision applies to particular information if that information is subject to a regulatory regime under two “designated program Acts”, which are specified in subsection 43A(3). 

15                      In identifying whether particular information is subject to regulatory regime under a designated program Act, the fact that the information is subject to a regulatory regime under another designated program Act is disregarded.  Without this provision, it may be difficult to apply the multiple secrecy provision in practice.  This is because, in some cases, a court may consider that two program Acts that regulated the same information in different ways were inconsistent, and may therefore decide that only one of those Acts could apply in the circumstances.  If a court was to take this view of the multiple secrecy provision as originally drafted, it would not operate as intended. 

16                      New subsection 43A(2) is the main operative part of the provision.  If the Secretary of the Department of Human Services, the Chief Executive Medicare or a Department of Human Services employee discloses, uses or makes a record of protected information without contravening the first program Act, that action does not contravene the second program Act. 

17                      The multiple secrecy provision can apply “successively” in a situation where three or more sets of secrecy provisions apply to the same piece of information.  In that situation, the provision could be applied to two or more pairs of secrecy provisions.  For example, if secrecy provisions A, B and C apply to the same piece of information and the Department of Human Services sought to rely on secrecy provision A, then the multiple secrecy provision would be applied to secrecy provisions A and B, and then A and C. 

Amendment (4) [Item 87 of Schedule 1 of the Bill (Multiple secrecy provisions)]

Context

18                      Under the proposed subsection 43A(3) of the Human Services (Medicare) Act 1973 (inserted by item 87 of Schedule 1 of the Bill), Acts can become “designated program Acts” for section 43A by being specified in regulations.

Explanation of amendment

19                      Amendment (4) amends proposed subsection 43A(3) by allowing Acts to become “designated program Acts” by being specified in a legislative instrument made by the Minister for Human Services, rather than regulation.  The legislative instrument will be subject to disallowance.

20                      The use of legislative instruments, rather than regulations, will enable arrangements for the delivery of new programs to be put in place quickly, when required. 

Amendments (5) - (9) [Division 3A of Schedule 1 of the Bill (Agreements about the performance of CEO’s functions)]

Context

21                      The Chief Executive Officer (CEO) of Medicare Australia has entered into a number of agreements with the principal officer of other Commonwealth agencies under section 7A of the Medicare Australia Act 1973 in relation to the delivery of programs. 

22                      Item 33 of Schedule 1 of the Bill repeals section 7A of the Medicare Australia Act 1973 replaces it with a new section 7A, which allows the Secretary of the Department of Human Services to enter into an agreement with the Secretary of another Department about the performance of any of the Chief Executive Medicare’s functions. 

23                      Without any transitional provision, agreements made under the current section 7A will lapse on commencement of the Bill.

24                      Division 3A of Part 2 of Schedule 1 of the Bill (items 99B-99D) operates to continue some agreements made under current section 7A of the Medicare Australia Act 1973 .  In particular, agreements made before 1 July 2011 between the CEO of Medicare Australia and a Secretary of a Department are continued as agreements between Secretaries under the new section 7A.  However, Division 3A does not continue agreements made before 1 July 2011 between the CEO of Medicare Australia and a principal officer who is not a Secretary (such as the CEO of a statutory agency).

Explanation of amendments

25                      Amendment (9) removes Division 3A of Part 2 of Schedule 1 from the Bill, with the effect that none of the agreements made under existing section 7A of the Medicare Australia Act 1973 are continued by transitional provisions.

26                      Rather than relying on the transitional provisions in Division 3A, these agreements will be continued by an exchange of correspondence at Secretary level after the Bill receives Royal Assent.  This will allow the Department of Human Services and the policy Departments to identify any minor modifications that need to be made to the agreements to reflect the new governance arrangements.  The agreements will be remade as agreements under the new section 7A of the (renamed) Human Services (Medicare) Act 1973 .

27                      Accordingly, the transitional provisions in Division 3A are unnecessary and the inclusion of them in the Bill may complicate the continuation of the agreements by way of an exchange of correspondence between Secretaries.  Given the importance of these agreements to the efficient and effective delivery of government programs, having the agreements continued by agreement at Departmental Secretary level, rather than by operation of law, represents better governance practice. 

28                      Amendments (5), (6), (7) and (8) are consequential on the removal of Division 3A.  These amendments ensure section 7A agreements lapse on commencement of the Bill.  In particular, amendments (5) and (6) ensure that Division 2 of Part 2 of Schedule 1 (items 89-96A) does not apply to acts done by the CEO under section 7A agreements and amendments (7) and (8) ensure that Division 3 of Part 2 of Schedule 1 (items 97-99A) does not apply to section 7A agreements.

Amendments (10) - (14) [Item 100 of Schedule 1 of the Bill (Transitional - administrative law proceedings) and consequential amendments to items 101, 102 and 103]

 

Context

29                      Item 100 of Schedule 1 of the Bill contains a transitional provision that applies to administrative law proceedings to which the Chief Executive Officer of Medicare Australia is a party.

Explanation of amendments

30                      Amendment (10) removes item 100 of Schedule 1 from the Bill because, in practice, the Chief Executive Officer of Medicare Australia is not a party to this type of proceedings, and accordingly item 100 is unnecessary.

31                      Amendments (11), (12), (13) and (14) make minor amendments that are consequential on the removal of item 100. 

Amendments (15) - (17) [Item 48 of Schedule 2 of the Bill (Definition of “centrelink programs”)]

Context

32                      Some secrecy provisions, mainly in Medicare Australia program Acts, are premised on the existence of Medicare Australia and Centrelink as separate entities.  The concept of “medicare programs” and “centrelink programs” is used in the Bill to amend these secrecy provisions so that the permitted information flow after the integration is the same as it is currently.

33                      Under item 48 of Schedule 2, “centrelink programs” are defined as any services, benefits, programs or facilities where the Chief Executive Centrelink or Departmental employees are involved in the provision of the services, benefits, programs or facilities, other than “medicare programs” or programs delivered under the child support law.

34                      Currently under proposed section 40(1)(b) of the Human Services (Centrelink) Act 1997 (inserted by item 48 of Schedule 1 of the Bill), new services, benefits, programs or facilities can be specified as “centrelink programs” by regulations. 

Explanation of amendments

35                      Amendment (15) amends proposed section 40(1)(b) by allowing new services, benefits, programs or facilities to be specified as “centrelink programs” by legislative instrument made by the Minister for Human Services, rather than by regulation.  The legislative instrument will be subject to disallowance. 

36                      The use of legislative instruments, rather than regulations, will enable arrangements for the delivery of new programs to be put in place quickly, when required.

37                      Amendments (16) and (17) amend proposed section 40(2) by enabling the Minister to make a legislative instrument expressly excluding a particular service, benefit, program or facility from being a centrelink program.

38                      While the circumstances in which the Minister might elect to make the instrument contemplated in paragraph 37 are limited, the amendment will give the Minister additional flexibility to manage programs where it is not appropriate for the program to be either a “centrelink program” or a “medicare program” for the purposes of the relevant secrecy provisions.

Amendment (18) [Item 48 of Schedule 2 of the Bill (Multiple secrecy provisions)]

Context

39                      Item 48 of Schedule 2 of the Bill inserts new section 40 (“multiple secrecy provisions”) into the renamed Human Services (Centrelink) Act 1997 .  New section 40 is equivalent to new section 43A of the Human Services (Medicare) Act 1973 , which is inserted by item 87 of Schedule 1 of the Bill.  Amendment (3) amends new section 43A. 

Explanation of amendment

40                      Amendment (18) makes amendments to new section 40 that correspond to the amendments made by amendment (3) to new section 43A. 

Amendment (19) [Item 48 of Schedule 2 of the Bill (Multiple secrecy provisions)]

Context

41                      Under the proposed subsection 40A(3) of the Human Services (Medicare) Act 1973 (inserted by item 48 of Schedule 2 of the Bill), Acts can become “designated program Acts” for section 40A by being specified in regulations.

Explanation of amendment

42                      Amendment (19) amends proposed subsection 40A(3) by allowing Acts to become “designated program Acts” by being specified in a legislative instrument made by the Minister for Human Services, rather than by regulations.  The legislative instrument will be subject to disallowance. 

43                      The use of legislative instruments, rather than regulations, will enable arrangements for the delivery of new programs to be put in place quickly, when required.

Amendments (20) - (24) [Division 3A of Schedule 2 of the Bill (Agreements about the performance of CEO’s functions)]

Context

44                      The CEO of Centrelink has entered into a number of agreements with the principal officer of other Commonwealth agencies under section 8A of the CSDA Act in relation to the delivery of programs. 

45                      Item 29 of Schedule 2 of the Bill repeals section 8A of the CSDA Act and replaces it with a new section 8B, which allows the Secretary of the Department of Human Services to enter into an agreement with the Secretary of another Department about the performance of any of the Chief Executive Centrelink’s functions. 

46                      Without any transitional provision, agreements made under section 8A will lapse on commencement of the Bill.

47                      Division 3A of Part 2 of Schedule 1 of the Bill (items 60B-60D) operates to continue some agreements made under section 8A of the CSDA Act In particular, agreements made before 1 July 2011 between the CEO of Centrelink and a Secretary of a Department are continued as agreements between Secretaries under the new section 8B.  However, Division 3A does not continue agreements made before 1 July 2011 between the CEO of Centrelink and a principal officer who is not a Secretary (such as the CEO of a statutory agency).

Explanation of amendment

48                      Amendment (24) removes Division 3A of Part 2 of Schedule 2 from the Bill, with the effect that none of the agreements made under section 8A of the CSDA Act are continued by transitional provisions.

49                      Rather than relying on the transitional provisions in Division 3A, these agreements will be continued by an exchange of correspondence at Secretary level after the Bill receives Royal Assent.  This will allow the Department of Human Services and the policy Departments to identify any minor modifications that need to be made to the agreements to reflect the new governance arrangements.  The agreements will be remade as agreements under the new section 8B of the (renamed) Human Services (Centrelink) Act 1973 .

50                      Accordingly, the transitional provisions in Division 3A are unnecessary and the inclusion of them in the Bill may complicate the continuation of the agreements by way of an exchange of correspondence between Secretaries.  Given the importance of these agreements to the efficient and effective delivery of government programs, having the agreements continued by agreement at Departmental Secretary level, rather than by operation of law, represents better governance practice. 

51                      Amendments (20), (21), (22) and (23) are consequential on the removal of Division 3A.  These amendments ensure section 7A agreements lapse on commencement of the Bill.  In particular, amendments (20) and (21) ensure that Division 2 of Part 2 of Schedule 2 (items 50-57A) does not apply to acts done by the CEO under section 8A agreements and amendments (22) and (23) ensure that Division 3 of Part 2 of Schedule 2 (items 58-60A) does not apply to section 8A agreements.

Amendment (25) [Item 4 of Schedule 3 of the Bill (Definition of “employee” in the Child Support (Registration and Collection) Act 1988 )]

Context

52                      Item 4 of Schedule 3 of the Bill repeals the existing definition of “employee” in the CS(R&C) Act and inserts a new definition.

53                      The term “employee” is used in two contexts in the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 .  First, it is used in Parts IV, VI and IX of the Child Support (Registration and Collection) Act 1988 to refer to a person who receives or is entitled to receive work and income support related withholding payments.  Second, it is used in the rest of the Child Support (Registration and Collection) Act 1988 and in the Child Support (Assessment) Act 1989 to refer to an APS employee. 

Explanation of amendment

54                      Amendment (25) amends item 4 to clarify that where the term “employee” is used in Parts IV, VI or IX of the Child Support (Registration and Collection) Act 1988 , it means a person who receives or is entitled to receive work and income support related withholding payments. 

55                      It is not necessary to define “employee” when it is referring to an APS employee because this general use of the term is defined in the Acts Interpretation Act 1901 .

Amendment (26) [New item 10A of Schedule 3 of the Bill (Use and communication of protected information with consent of the relevant person under the Child Support (Registration and Collection) Act 1988 )]

Context

56                      As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use.  It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions. 

57                      Under section 16(3)(f) of the Child Support (Registration and Collection) Act 1988 , the Child Support Registrar, or a person authorised by the Child Support Registrar, may communicate protected information if the person to whom the information relates authorises the communication.  That is, customer information can be disclosed with the consent of the customer. 

58                      However, currently there is no provision in section 16 of the Child Support (Registration and Collection) Act 1988 to “make a record of” protected information about a person where the person to whom the information relates consents to that record being made.  Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the child support program for other programs. 

Explanation of amendment

59                      Amendment (26) inserts a new subsection 16(2AAA) into the Child Support (Registration and Collection) Act 1988 , which ensures that it is not an offence for a person to make a record of information, if it is done with the express or implied authorisation of the person to whom the information relates.

60                      This amendment ensures that a customer who receives services under the child support program can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services .  It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.

Amendment (27) [Item 14 of Schedule 3 of the Bill (Multiple secrecy provisions)]

Context

61                      Item 14 of Schedule 3 of the Bill inserts new section 16AB (“multiple secrecy provisions”) into the Child Support (Registration and Collection) Act 1988 .  New section 16AB is equivalent to new section 43A of the Human Services (Medicare) Act 1973 , which is inserted by item 87 of Schedule 1 of the Bill.  Amendment (3) amends new section 43A. 

Explanation of amendment

62                      Amendment (18) makes amendments to new section 16AB that correspond to the amendments made by amendment (3) to new section 43A. 

Amendment (28) [ Item 14 of Schedule 3 of the Bill (Multiple secrecy provisions)]

Context

63                      Under the proposed subsection 16AB(3) of the Child Support (Registration and Collection) Act 1988 (inserted by item 14 of Schedule 3 of the Bill), Acts can become “designated program Acts” for section 16AB by being specified in regulations.

Explanation of amendment

64                      Amendment (28) amends proposed subsection 16AB(3) by allowing Acts to become “designated program Acts” by being specified in a legislative instrument made by the Minister for Human Services, rather than by regulations.  The legislative instrument will be subject to disallowance. 

65                      The use of legislative instruments, rather than regulations, will enable arrangements for the delivery of new programs to be put in place quickly, when required. 

Amendments (29) and (32) [New items 28A and 41A of Schedule 4 of the Bill (Amendments to secrecy provisions in A New Tax System (Family Assistance) (Administration) Act 1999 )]

Context

66                      The secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 all regulate the handling of information by reference to definitions of “protected information”.  These definitions of “protected information”, which on their face are very broad, currently encompass information about a person held in the records of Centrelink.  

67                      As Centrelink will no longer exist as an agency after from 1 July 2011, these definitions of protected information require amendment.  The amendments in items 28, 476, 477, 478, 561, 562, 563, 564, 565, 566 and 614 of Schedule 4 of the Bill change the definitions of “protected information” in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 so that, in each case, “protected information” encompasses information about a person held by the Department of Human Services for the purposes of the relevant law.

68                      The intention of the amendments to the secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 is to ensure that, from 1 July 2011, the Department of Human Services can handle information held under social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 in the same way as Centrelink currently handles such information.  There is no intention to either expand or reduce the requirements on officials in relation to the handling of this type of information.  As noted in the former Minister of Human Services’ speech announcing service delivery reform on 16 December 2009, no more customer information will be shared between different programs under service delivery reform than occurred at the time the reform was announced, except with customer consent.

69                      If the definitions of “protected information” were amended in the manner proposed by the Bill, and no further changes were made, the result would be that, from 1 July 2011, the secrecy provisions may operate to restrict some uses of information within government that currently occur.  Such an outcome would not be intended.

Explanation of amendments

70                      Amendment (32) will expressly allow information obtained for the purposes of the family assistance law to be used for the purposes of the social security law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973.  This is consistent with how the provisions of the family assistance law are currently administered.  As well as ensuring that current arrangements in relation to the handling of customer information can continue from 1 July 2011, the amendments also improve the clarity of the operation of the secrecy provisions in the family assistance law.

71                      Amendment (29) inserts a new item in Schedule 4, which inserts a definition of “social security law” in A New Tax System (Family Assistance) (Administration) Act 1999 .  This amendment is consequential on amendment (32).

Amendments (30), (33) and (34) [New items 29A and 42A of Schedule 4 of the Bill and amendment to item 44 of Schedule 4 of the Bill (Amendments to the New Tax System (Family Assistance) (Administration) Act 1999 )]

Context

72                      Item 19 of Schedule 4 of the Bill amends the definition of “agency” in the A New Tax System (Family Assistance) (Administration) Act 1999 so that it includes the Department of Human Services.

Explanation of amendments

73                      Amendment (30), (33) and (34) are consequential on the amendment by item 19 of Schedule 4 to the definition of “agency”.   The amendments do not make a substantive change to the provisions.  Rather, they make the reference in the provisions to the Department of Human Services more transparent.

74                      Amendment (30) inserts a new item into Schedule 4 of the Bill, which amends subsection 109C(2) of A New Tax System (Family Assistance) (Administration) Act 1999

75                      Amendment (33) inserts a new item into Schedule 4 of the Bill, which amends subsection 221(2) of A New Tax System (Family Assistance) (Administration) Act 1999

76                      Amendment (34) amends item 44 of Schedule 4 of the Bill.  Item 44 amends subsection 221(3) of A New Tax System (Family Assistance) (Administration) Act 1999

Amendment (31) [Item 32 of Schedule 4 of the Bill (Amendments to the A New Tax System (Family Assistance) (Administration) Act 1999 - Parties to SSAT proceedings)]

Context

77                      Paragraphs 118(1)(c) and (e) of A New Tax System (Family Assistance) (Administration) Act 1999 provide that the Chief Executive Officer of Medicare Australia and the Child Executive Officer of Centrelink may be parties to an SSAT review of a decision made under the family assistance law.  Item 32 of Schedule 4 of the Bill makes consequential amendments to these paragraphs to refer to the new Chief Executive positions.

Explanation of amendment

78                      Amendment (31) replaces the existing item 32 of Schedule 4 of the Bill with a new item 32 that repeals paragraphs 118(1)(c) and 118(1)(e) because these paragraphs are no longer required. 

Amendment (35) [Items 45 and 46 of Schedule 4 of the Bill (Amendments to the A New Tax System (Family Assistance) (Administration) Act 1999 - Agreements about administrative arrangements)]

Context

79                      Section 234(3) of A New Tax System (Family Assistance) (Administration) Act 1999 allows for the Secretary and the Chief Executive Officer of Medicare Australia to agree on administrative arrangements to further the objectives of the Act. 

80                      Items 45 and 46 of Schedule 4 of the Bill propose:

·          an amendment to subsection 234(3) to refer to the Chief Executive Medicare; and

·          the inclusion of a new subsection 234(4) to insert an equivalent provision for agreements between the Secretary and the Chief Executive Centrelink.

Explanation of amendment

81                      It has been determined that the existing section 234(3) and the proposed new section 234(4) are not required, given the overarching ability (in new section 8B of the renamed Human Services (Centrelink) Act 1997 and new section 7A of the renamed Human Services (Medicare) Act 1973 ) for the Secretary of the Department of Human Services to enter into agreements with the Secretaries of other Departments about the performance of the Chief Executives’ functions.

82                      Accordingly, amendment (35):

·          removes items 45 and 46 from Schedule 4 of the Bill; and

·          inserts a new item 45 that repeals subsection 234(3) of A New Tax System (Family Assistance) (Administration) Act 1999.

Amendment (36) [New item 50A of Schedule 4 of the Bill (Use and communication of protected information with consent of the relevant person under the Child Support (Assessment) Act 1989 )]

Context

83                      As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use.  It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions. 

84                      Under section 150(3)(f) of the Child Support (Assessment) Act 1989 , the Child Support Registrar, or a person authorised by the Child Support Registrar, may communicate protected information if the person to whom the information relates authorises the communication. 

85                      However currently there is no provision in section 16 of the Child Support (Assessment) Act 1989 to make a record of protected information about a person where the person to whom the information relates consents to that record being made.  Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the child support program for other programs.

Explanation of amendment

86                      Amendment (36) inserts a new subsection 150(2A) into the Child Support (Assessment) Act 1989 , which ensures that it is not an offence for a person to make a record of information, if it is done with the express or implied authorisation of the person to whom the information relates.

87                      This amendment ensures that a customer who receives services under the child support program can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services .  It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.

Amendment (37) [New item 94A of Schedule 4 of the Bill (Use and communication of protected information with consent of the relevant person under the Disability Services Act 1986 )]

Context

88                      As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use.  It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions. 

89                      Under paragraph 28(5)(c) of the Disability Services Act 1986 , a person may divulge information obtained in the course of performing duties under the Disability Services Act 1986 if the person to whom the information relates authorises that to occur. 

90                      However currently there is no provision in section 28 of the Disability Services Act 1986 to make a record of protected information about a person where the person to whom the information relates consents to that record being made.  Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the Disability Services Act 1986 for other programs.

Explanation of amendment

91                      Amendment (37) inserts a new paragraph 28(5)(d) into the Disability Services Act 1986 , which ensures that it is not an offence for a person to make a record of information under that Act, if it is done with the express or implied authorisation of the person to whom the information relates.

92                      Amendment (37) ensures that a customer who receives disability services can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services .  It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.

Amendment (38) [New item 257A of Schedule 4 of the Bill (Use and communication of protected information with consent of the relevant person under the Health Insurance Act 1973 )]

Context

93                      As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use.  It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions. 

94                      Under paragraph 130(3)(c) of the Health Insurance Act 1973 , a person may divulge information obtained in the course of performing duties under the Health Insurance Act 1973 if the person to whom the information relates authorises that to occur. 

95                      However currently there is no provision in section 130 of the Health Insurance Act 1973 to make a record of protected information about a person where the person to whom the information relates consents to that record being made.  Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the Medicare program for other programs.

Explanation of amendment

96                      Amendment (38) inserts a new subsection 130(3AA) into the Health Insurance Act 1973 , which ensures that it is not an offence for a person to make a record of information under that Act, if it is done with the express or implied authorisation of the person to whom the information relates.

97                      Amendment (38) ensures that a customer who receives services under the Health Insurance Act 1973 can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services .  It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.

Amendment (39) [New item 357A of Schedule 4 of the Bill (Use and communication of protected information with consent of the relevant person under the Medical Indemnity Act 2002 )]

Context

98                      As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use.  It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions. 

99                      Under paragraph 77(3)(b) of the Medical Indemnity Act 2002 , a person may divulge protected information if the person to whom the information relates authorises that to occur. 

100                  However currently there is no provision in section 77 of the Medical Indemnity Act 2002 to make a record of protected information about a person where the person to whom the information relates consents to that record being made.  Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the Medical Indemnity Act 2002 for other programs. 

Explanation of amendment

101                  Amendment (39) inserts a new subsection 77(5A) into the Medical Indemnity Act 2002 , which ensures that it is not an offence for a person to make a record of information under that Act, if it is done with the express or implied authorisation of the person to whom the information relates.

102                  Amendment (39) ensures that a customer who receives services under the Medical Indemnity Act 2002 can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services .  It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.

Amendment (40) [New item 417A to be inserted in Schedule 4 of the Bill (Use and communication of protected information with consent of the relevant person under the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 )]

Context

103                  As a policy position, the Department of Human Services will not use customer information collected for the purposes of one program for another program, unless the use of information in this way is authorised by law and already occurs or, alternatively, the customer consents to the additional use.  It is important for service delivery reform that customers can consent to this information being used for a number of different programs, to prevent customers having to provide the same information to the Department of Human Services on multiple occasions. 

104                  Currently there is no provision in section 88 of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 to make a record of protected information about a person where the person to whom the information relates consents to that record being made.  Thus, currently, it is not clear that a customer can consent to the Department of Human Services using information collected for the purposes of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 for other programs. 

Explanation of amendment

105                  Amendment (40) inserts a new subsection 88(5A) into the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 , which ensures that it is not an offence for a person to make a record of information under that Act, if it is done with the express or implied authorisation of the person to whom the information relates.

106                  This amendment ensures that a customer who receives services under the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 can consent to a record of information about them being made for a purpose that is not otherwise authorised, for example for the purposes of another program delivered by the Department of Human Services .  It is necessary for this amendment to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.

Amendments (41) - (43) [New items 470A, 479A and 479B of Schedule 4 of the Bill (Amendments to secrecy provisions in the Paid Parental Leave Act 2010 )]

Context

107                  The secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 all regulate the handling of information by reference to definitions of “protected information”.  These definitions of “protected information”, which on their face are very broad, currently encompass information about a person held in the records of Centrelink.  

108                  As Centrelink will no longer exist as an agency after from 1 July 2011, these definitions of protected information require amendment.  The amendments in items 28, 476, 477, 478, 561, 562, 563, 564, 565, 566 and 614 of Schedule 4 of the Bill change the definitions of “protected information” in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 so that, in each case, “protected information” encompasses information about a person held by the Department of Human Services for the purposes of the relevant law.

109                  The intention of the amendments to the secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 is to ensure that, from 1 July 2011, the Department of Human Services can handle information held under social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 in the same way as Centrelink currently handles such information.  There is no intention to either expand or reduce the requirements on officials in relation to the handling of this type of information.  As noted in the former Minister of Human Services’ speech announcing service delivery reform on 16 December 2009, no more customer information will be shared between different programs under service delivery reform than occurred at the time the reform was announced, except with customer consent.

110                  If the definitions of “protected information” were amended in the manner proposed by the Bill, and no further changes were made, the result would be that, from 1 July 2011, the secrecy provisions may operate to restrict some uses of information within government that currently occur.  Such an outcome would not be intended.

Explanation of amendments

111                  Amendment (43) will expressly allow information obtained for the purposes of the Paid Parental Leave Act 2010 to be used for the purposes of the social security law, the family assistance law and the Student Assistance Act 1973.  This is consistent with how the provisions of the Paid Parental Leave Act 2010 are currently administered.  As well as ensuring that current arrangements in relation to the handling of customer information can continue from 1 July 2011, the amendments also improve the clarity of the operation of the secrecy provisions in the Paid Parental Leave Act 2010 .

112                  Amendment (41) inserts a new item in Schedule 4, which inserts a definition of “family assistance law” in the Paid Parental Leave 2010.  This amendment is consequential on Amendment (43).

113                  Amendment (42) inserts a new item in Schedule 4, which inserts a definition of “social security law” in the Paid Parental Leave 2010.  This amendment is consequential on Amendment (43).

Amendment (44) [Item 500 of Schedule 4 of the Bill (Amendment to section 303 of the Paid Parental Leave Act 2010 )]

Context

114                  Section 303 of the Paid Parental Leave Act 2010 is a delegation provision.  Under section 303(1), the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs may delegate certain of his or her powers to a person engaged in an agency or authority of the Commonwealth.   Section 303(1)(b) expressly excludes the CEO or an employee of Centrelink from receiving a delegation under section 303(1).

115                  Under section 303(2), the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs may only delegate certain powers under the Act to the CEOs, and employees, of Centrelink and Medicare Australia.

116                  Item 500 of Schedule 4 of the Bill updates the references in section 303(1)(b) to be references to the Chief Executive Centrelink and APS employees in the Human Services Department.

Explanation of amendment

117                  Amendment (44) amends item 500 to add a reference to the Chief Executive Medicare to section 303(1)(b) of the Paid Parental Leave Act 2010

118                  A reference to the Chief Executive Officer of Medicare Australia should have been included in section 303(1)(b) at the time the Act was enacted. 

Amendments (45) and (47) [New items 560A and 587B of Schedule 4 of the Bill (Amendments to the social security law secrecy provisions to allow disclosure of information to the Chief Executive Centrelink and the Chief Executive Medicare)]

Context

119                  Paragraph 208(1)(b)(i) of the Social Security (Administration) Act 1999 currently enables the Secretary of a Department that administers that Act to disclose protected information to the Secretary of another Department or to the head of an authority of the Commonwealth, for the purposes of that Department or authority.  This provision currently provides a mechanism for disclosing information to the Chief Executive Officer of Medicare Australia and the Chief Executive Officer of Centrelink.

120                  After the integration takes effect, the Chief Executives will no longer be heads of an authority and disclosure to them under paragraph 208(1)(b)(i) of the Social Security (Administration) Act 1999 will no longer be possible.

Explanation of amendments

121                  Amendment (47) inserts new paragraphs 208(1)(b)(iv) and (v) into the Social Security (Administration) Act 1999 to allow the Secretary to disclose protected information to:

·          the Chief Executive Centrelink for the purposes of a “centrelink program”; and

·          to the Chief Executive Medicare for the purposes of a “medicare program”. 

122                  This amendment is intended to ensure that the existing permitted information flows can continue after the integration takes effect. 

Amendment (46) [New item 487A of Schedule 4 of the Bill (Amendments to secrecy provisions in the Social Security (Administration) Act 1999 )]

Context

123                  The secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 all regulate the handling of information by reference to definitions of “protected information”.  These definitions of “protected information”, which on their face are very broad, currently encompass information about a person held in the records of Centrelink.  

124                  As Centrelink will no longer exist as an agency after from 1 July 2011, these definitions of protected information require amendment.  The amendments in items 28, 476, 477, 478, 561, 562, 563, 564, 565, 566 and 614 of Schedule 4 of the Bill change the definitions of “protected information” in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 so that, in each case, “protected information” encompasses information about a person held by the Department of Human Services for the purposes of the relevant law.

125                  The intention of the amendments to the secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 is to ensure that, from 1 July 2011, the Department of Human Services can handle information held under social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 in the same way as Centrelink currently handles such information.  There is no intention to either expand or reduce the requirements on officials in relation to the handling of this type of information.  As noted in the former Minister of Human Services’ speech announcing service delivery reform on 16 December 2009, no more customer information will be shared between different programs under service delivery reform than occurred at the time the reform was announced, except with customer consent.

126                  If the definitions of “protected information” were amended in the manner proposed by the Bill, and no further changes were made, the result would be that, from 1 July 2011, the secrecy provisions may operate to restrict some uses of information within government that currently occur.  Such an outcome would not be intended.

Explanation of amendment

127                  Amendment (46) will expressly allow information obtained for the purposes of the social security law to be used for the purposes of the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973.  This is consistent with how the provisions of the social security law are currently administered.  As well as ensuring that current arrangements in relation to the handling of customer information can continue from 1 July 2011, the amendments also improve the clarity of the operation of the secrecy provisions in the social security law.

Amendments (48), (50) and (53) [New items 608A, 613A and 617B of Schedule 4 of the Bill (Amendments to the Student Assistance Act 1973 secrecy provisions to allow disclosure of information to the Chief Executive Centrelink and the Chief Executive Medicare)]

Context

128                  Paragraph 355(1)(b) of the Student Assistance Act 1973 currently enables the Secretary to disclose protected information to the Secretary of a Department of State or to the head of an authority of the Commonwealth, for the purposes of that Department or authority.  This provision currently provides a mechanism for disclosing information to the Chief Executive Officer of Medicare Australia and the Chief Executive Officer of Centrelink.

129                  After the integration takes effect, the Chief Executives will no longer be heads of an authority and disclosure to them under paragraph 355(1)(b) of the SSA Act will no longer be possible.

Explanation of amendments

130                  Amendment (53) inserts a new item 617B into Schedule 4 which repeals the existing section 355(1)(b) and replaces it with a new section 355(1)(b) to allow the Secretary to disclose protected information to:

·          the Chief Executive Centrelink for the purposes of a “centrelink program”; and

·          to the Chief Executive Medicare for the purposes of a “medicare program”. 

131                  This amendment is intended to ensure that the existing permitted information flows can continue after the integration takes effect.

132                  Amendment (48) inserts a definition of “centrelink program” into the Student Assistance Act 1973.  Amendment (50) inserts a definition of “medicare program” into the Student Assistance Act 1973.  These amendments are consequential on Amendment (53).

Amendments (49), (51) and (52) [New items 611A, 615A and 617A of Schedule 4 of the Bill (Amendments to secrecy provisions in the Student Assistance Act 1973 )]

Context

133                  The secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 all regulate the handling of information by reference to definitions of “protected information”.  These definitions of “protected information”, which on their face are very broad, currently encompass information about a person held in the records of Centrelink.  

134                  As Centrelink will no longer exist as an agency after from 1 July 2011, these definitions of protected information require amendment.  The amendments in items 28, 476, 477, 478, 561, 562, 563, 564, 565, 566 and 614 of Schedule 4 of the Bill change the definitions of “protected information” in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 so that, in each case, “protected information” encompasses information about a person held by the Department of Human Services for the purposes of the relevant law.

135                  The intention of the amendments to the secrecy provisions in the social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 is to ensure that, from 1 July 2011, the Department of Human Services can handle information held under social security law, the family assistance law, the Paid Parental Leave Act 2010 and the Student Assistance Act 1973 in the same way as Centrelink currently handles such information.  There is no intention to either expand or reduce the requirements on officials in relation to the handling of this type of information.  As noted in the former Minister of Human Services’ speech announcing service delivery reform on 16 December 2009, no more customer information will be shared between different programs under service delivery reform than occurred at the time the reform was announced, except with customer consent.

136                  If the definitions of “protected information” were amended in the manner proposed by the Bill, and no further changes were made, the result would be that, from 1 July 2011, the secrecy provisions may operate to restrict some uses of information within government that currently occur.  Such an outcome would not be intended.

Explanation of amendments

137                  Amendment (52) will expressly allow information obtained for the purposes of the Student Assistance Act 1973 to be used for the purposes of the social security law, the family assistance law and the Paid Parental Leave Act 2010.  This is consistent with how the provisions of the Student Assistance Act 1973 are currently administered.  As well as ensuring that current arrangements in relation to the handling of customer information can continue from 1 July 2011, the amendments also improve the clarity of the operation of the secrecy provisions in the Student Assistance Act 1973 .

138                  Amendment (49) inserts a definition of “family assistance law” in the Student Assistance Act 1973.  Amendment (51) inserts a definition of “social security law” in the Student Assistance Act 1973.  These amendments are consequential on Amendment (52).

Amendment (54) [New Part 5 of Schedule 4 of the Bill (Amendments anticipating the enactment of the Family Assistance and Other Legislation Amendment (Child Care and Other Measures) Act )]

Context

139                  One of the key principles of service delivery reform is that there will be no new information sharing, unless the customer consents.  Some program legislation imposes restrictions on the circumstances in which an officer may use or make a record of protected information, with no capacity for the individual to consent to different uses. 

140                  The Minister for Employment Participation and Childcare has proposed amendments to A New Tax System (Family Assistance) (Administration) Act 1999 , the Social Security (Administration) Act 1999 and the Student Assistance Act 1973 to allow a customer to authorise a person to make a record of, disclose or otherwise use, information about them for a purpose that is not otherwise authorised.  These amendments are contained in the Family Assistance and Other Legislation Amendment (Child Care and Other Measures) Bill (FAOLA Bill).

Explanation of amendments

141                  Amendment (54) inserts three new items in the Bill to replicate the relevant amendments to be made in the FAOLA Bill. 

142                  Amendment (1) amends the commencement provisions in the Bill to ensure that Amendment (54) only takes effect if the FAOLA Bill has not passed yet. 

143                  Amendments (54) and (1) are intended to mitigate the risk that the FAOLA Bill is not passed by 1 July 2011.  It is necessary for the amendments to commence on 1 July 2011 to support service delivery reform and the operations of the Department of Human Services from this date.  

Amendment (55) [New Part 6 of Schedule 4 of the Bill (Amendments contingent on the commencement of the Family Assistance and Other Legislation Amendment (Child Care and Other Measures) Act )]

Context

144                  As noted above in paragraph 140 , the Minister for Employment Participation and Childcare has proposed amendments to A New Tax System (Family Assistance) (Administration) Act 1999 , the Social Security (Administration) Act 1999 and the Student Assistance Act 1973 to allow a customer to authorise a person to make a record of, disclose or otherwise use, information about them for a purpose that is not otherwise authorised.  These amendments are contained in the Family Assistance and Other Legislation Amendment (Child Care and Other Measures) Bill (FAOLA Bill).

Explanation of amendment

145                  Amendment (55) inserts a new Part 6 into Schedule 4 of the Bill.  Part 6 amends the commencement provisions in the FAOLA Bill so that amendments in the FAOLA Bill that are replicated in this Bill do not take effect if this Bill has already been passed.