EXPLANATORY STATEMENT
Child Support (Registration and Collection) (Designated Program Act) Specification 2011 (No. 1)
Background
The Human Services Legislation Amendment Act 2011 (the Amendment Act) integrates Medicare Australia and Centrelink into the Department of Human Services (DHS) from 1 July 2011. The Department of Human Services is responsible for delivering the child support program through the Child Support Registrar, under the Child Support (Registration and Collection) Act 1988 (CS(R&C) Act) and the Child Support (Assessment) Act 1989.
The Amendment Act inserts a new section 16AB (the “multiple secrecy provisions”) into the CS(R&C) Act, with effect from 1 July. 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 “designated program Acts”. Section 16AB applies equally to information collected prior to 1 July 2011 and information obtained after 1 July 2011.
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 (such as child support and medicare), the Department is able to use and disclose that information if it complies with one of the secrecy provisions applicable to that information.
Further information on the operation of new section 16AB can be found at pages 96-98 of the Revised Explanatory Memorandum to the Human Services Legislation Amendment Bill 2011.
A list of designated program Acts is set out in subsection 16AB(3). In addition, an Act may be a designated program Act if it is specified in a legislative instrument made by the Minister for the purposes of paragraph 16AB(3)(o).
The Child Support (Registration and Collection) (Designated Program Act) Specification 2011 (No. 1) (the Specification) specifies the Australian Prudential Regulation Authority Act 1988 (APRA Act) as a designated program Act for the purposes of paragraph 16AB(3)(o). Specification of this Act as a designated program Act avoids any legal uncertainty as to which set of secrecy provisions should apply to customer information that is protected by this Act and another Act that DHS delivers services under.
Since the Amendment Act received Royal Assent on 25 May 2011, subsection 4(1) of the Acts Interpretation Act 1901 allows the Minister to make the Specification under paragraph 16AB(3)(o) prior to the commencement of section 16AB.
DHS delivers the early release of superannuation benefits on compassionate grounds program (ROB program) on behalf of the Australian Prudential Regulation Authority (APRA). The ROB program is conducted under the Superannuation Industry (Supervision) Regulations 1994 and the Retirement Savings Account Regulations 1997.
In the course of delivering the ROB program, DHS officers obtain information about customers that is protected information under section 56 of the APRA Act. DHS may already hold some of this customer information for the purposes of another program that DHS delivers. In many instances, this information would be protected by a different set of secrecy provisions that apply to DHS officers, such as the secrecy provisions in the Social Security (Administration) Act 1999. For example, one of the grounds on which a person can seek early access to their superannuation benefits is severe financial hardship, which requires that a person have been in receipt of a Commonwealth income support payment for at least 26 continuous weeks. Specification of the APRA Act as a designated program Act avoids any legal uncertainty as to which set of secrecy provisions should apply to that customer information held by DHS.
Consultation
The Specification gives effect to Government policy on service delivery as enacted through the Amendment Act, by clarifying the secrecy regime that applies to certain programs delivered by the Department of Human Services. No public consultation in addition to that undertaken in connection with service delivery reforms and the Amendment Act was considered necessary.
The Specification commences on 1 July 2011, at the same time as section 16AB of the CS(R&C) Act.
No statutory preconditions needed to be satisfied prior to the making of the Specification.
Overview
The Child Support (Registration and Collection) (Designated Program Act) Specification 2011 (No. 1) was introduced to clarify the application of secrecy provisions where the Department of Human Services (DHS) holds information under multiple designated program Acts, such as the Australian Prudential Regulation Authority Act 1988 (APRA Act) and the Child Support (Registration and Collection) Act 1988 (CS(R&C) Act). Enacted in response to the integration of Medicare Australia and Centrelink into DHS under the Human Services Legislation Amendment Act 2011, the legislation aims to provide legal certainty regarding the handling of sensitive customer information. By specifying the APRA Act as a designated program Act, the Specification ensures that DHS can appropriately apply the relevant secrecy provisions to information obtained through different programs, thus facilitating efficient service delivery without compromising the confidentiality of client data. The Specification aligns with the government policy on streamlined service delivery, commencing on 1 July 2011, and does not require additional consultation beyond the reforms already undertaken.
Scope and Application
The Child Support (Registration and Collection) (Designated Program Act) Specification 2011 (No. 1) specifies the Australian Prudential Regulation Authority Act 1988 as a designated program Act under the new section 16AB inserted into the Child Support (Registration and Collection) Act 1988 by the Human Services Legislation Amendment Act 2011. This specification applies to information held by the Department of Human Services, which is responsible for delivering child support and other programs including the early release of superannuation benefits on compassionate grounds (ROB program). The intent is to resolve any legal uncertainty regarding the applicable secrecy provisions when the Department holds the same piece of information under the APRA Act and another program, such as child support or Medicare. By specifying the APRA Act as a designated program Act, the Department can use and disclose customer information if it complies with the secrecy provisions of either the APRA Act or another applicable Act, thereby ensuring consistent and compliant handling of sensitive information across different programs. This specification operates alongside the new secrecy provisions, aiming to streamline and clarify the secrecy regime for program information managed by the Department.
Key Provisions
The Child Support (Registration and Collection) (Designated Program Act) Specification 2011 (No. 1) outlines how the Department of Human Services (DHS) will manage the application of secrecy provisions when it holds the same piece of information about an individual under multiple designated program acts. Section 16AB of the Child Support (Registration and Collection) Act 1988 (CS(R&C) Act) specifies that when the DHS holds information collected under two or more designated program acts, it can use or disclose the information as long as it complies with the secrecy provisions applicable to that information. This provision applies to information collected both before and after the commencement date of 1 July 2011. Section 16AB(3) lists the designated program acts, with the option for the Minister to specify additional acts through a legislative instrument.
The obligations imposed by the Specification are primarily on the DHS to ensure that when handling sensitive information obtained under various designated program acts, the applicable secrecy provisions are adhered to. This includes ensuring that information obtained under the Australian Prudential Regulation Authority Act 1988 (APRA Act) and other designated program acts is managed in compliance with the relevant secrecy laws. This requirement is essential to maintain the confidentiality and integrity of the information, which is critical to the effective operation of the programs that DHS administers.
Breaching the obligations set out in the Specification can have serious legal consequences. While the Specification itself does not detail specific offences or penalties, breaches of the underlying secrecy provisions in the designated program acts can lead to both civil and criminal penalties. For instance, under the APRA Act, unauthorised use or disclosure of protected information can result in significant fines, and in some cases, criminal prosecution. Similarly, breaches of secrecy provisions in other designated program acts can also attract penalties, including substantial fines and imprisonment, depending on the severity and intent of the breach. It is therefore crucial for the DHS to rigorously comply with the secrecy provisions applicable to the information it holds.