EXPLANATORY STATEMENT
Issued by authority of the Minister for Defence Personnel
Defence Force (Home Loans Assistance) Act 1990
Defence Force (Home Loans Assistance) Regulations 2018
The Defence Force (Home Loans Assistance) Act 1990 (the Act) makes provision for providing for the payment of home loan subsidies in respect of certain members of the Australian Defence Force.
Section 40 of the Act, provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed; or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The purpose of the Defence Force (Home Loans Assistance) Regulations 2018 (the Regulations) is to repeal the Defence Force (Home Loans Assistance) Regulations 1991 before they sunset on 1 October 2018. This scheme has been closed to new applications and has diminishing numbers. This scheme was superseded by a new home ownership assistance scheme for eligible ADF members on 1 July 2008. Following a ‘fitness for purpose’ review it was decided that the Regulations need to preserve the ‘Use and disclosure of personal information’ as prescribed by section 36A of Act for those current ADF members. The previous specific regulations relating to continuity of service (leave) and compensable disability did not need to be remade as they relate to matters that were historical and any application would consider the time of the event occurring not current applications.
The Department of Veterans Affairs, Defence Legal and the Relocation and Housing Branch in the Department of Defence have been consulted during the remake of the Regulations.
The authorising Act specifies no conditions that need to be fulfilled before the Regulations can be made.
The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
The Regulations would commence on the day after it is registered on the Federal Register of Legislation and the details of the Regulations are set out in the Attachment.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Defence Force (Home Loans Assistance) Regulations 2018
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of the Defence Force (Home Loans Assistance) Regulations 2018 (the Regulations) is to repeal the Defence Force (Home Loans Assistance) Regulations 1991 before they sunset on 1 October 2018. This scheme has been closed to new applications and has diminishing membership numbers. This scheme was superseded by a new home ownership assistance scheme for eligible ADF members on 1 July 2008. The Regulations preserve the ‘Use and disclosure of personal information’ as prescribed by section 36A of the Act for those current ADF members who are with the previous scheme.
Human rights implications
The Regulations engage Article 17- of the International Covenant on Civil and Political Rights- no one shall be subjected to arbitrary or unlawful interference with privacy.
The Regulation sets out the purpose for which personal information about persons in circumstances specified in subsection 36A (1) of the Act may be used and disclosed by persons specified in subsection 36A(3) of the Act. The use and disclosure must fall within the scope of purposes as set out in the Regulations. The purposes prescribed relate directly to the administration of benefits under the Act and the scheme.
The Privacy Act 1988 protects personal information from unauthorised use and disclosure. Applicants under the scheme will be advised of the range and use and disclosure to which their information may be put, and their consent sought as part of the application process, the persons whose information is routinely disclosed or used will be informed of the disclosures and uses.
Conclusion
The Regulations are compatible with human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
Minister for Defence Personnel, the Honourable Darren Chester MP
Details of the Regulations are as follows:
Section 1 – Name
This section provides that the title of the instrument is the Defence Force (Home Loans Assistance) Regulations 2018.
Section 2 – Commencement
This section provides for the Regulations to commence on the day after the instrument is registered.
Section 3 – Authority
The Regulations are made under the Defence Force (Home Loans Assistance) Act 1990.
Section 4 – Schedules
This section provides that each instrument as set out in the Schedule is amended or repealed as specified.
Section 5 - Definitions
This section provides definitions of words used in the Regulations.
Section 6 – Use and disclosure of personal information-prescribed purposes
This section ensures that the anticipated uses and disclosures of personal information for the purposes of administering the scheme.
Schedule 1- Repeals
Section1 – The whole of the Instrument
This provision repeals the Defence Force (Home Loans Assistance) Regulations 1991.
Overview
The Defence Force (Home Loans Assistance) Regulations 2018 were enacted to address the need for updating and repealing outdated regulations concerning home loan assistance for members of the Australian Defence Force. These Regulations were made under the authority of the Defence Force (Home Loans Assistance) Act 1990, which provides for the payment of home loan subsidies to certain Defence Force members. The primary objective of these Regulations is to ensure that the 'Use and disclosure of personal information' as prescribed by section 36A of the Act is preserved for current Australian Defence Force (ADF) members who were part of the previous scheme. The Regulations also ensure that personal information is used and disclosed within the scope of purposes prescribed, directly related to the administration of benefits under the Act and the scheme. This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Regulations were developed following consultations with the Department of Veterans Affairs, Defence Legal, and the Relocation and Housing Branch in the Department of Defence.
Scope and Application
The Defence Force (Home Loans Assistance) Regulations 2018 are subordinate legislation made under the Defence Force (Home Loans Assistance) Act 1990, which is designed to provide home loan subsidies to certain members of the Australian Defence Force. These Regulations repeal the Defence Force (Home Loans Assistance) Regulations 1991 before their scheduled sunset on 1 October 2018, and they apply to current members of the Australian Defence Force who are part of the previous home loans assistance scheme. The Regulations are intended to preserve the "Use and disclosure of personal information" as prescribed by section 36A of the Act for these current members. They were developed following consultations with the Department of Veterans Affairs, Defence Legal, and the Relocation and Housing Branch in the Department of Defence. The Regulations are compatible with human rights, particularly Article 17 of the International Covenant on Civil and Political Rights, which safeguards against arbitrary or unlawful interference with privacy. The use and disclosure of personal information must adhere to the purposes prescribed in the Regulations, which are directly related to the administration of benefits under the Act and the scheme. The Regulations ensure that the anticipated uses and disclosures of personal information are clearly outlined, and applicants are informed of these during the application process. The Regulations also ensure that any person whose information is routinely disclosed or used is informed of such disclosures and uses.
Key Provisions
The Defence Force (Home Loans Assistance) Regulations 2018 primarily serve to repeal the existing Defence Force (Home Loans Assistance) Regulations 1991, which were set to expire on 1 October 2018. These regulations have been rendered obsolete by a new home ownership assistance scheme for eligible Australian Defence Force (ADF) members, which commenced on 1 July 2008. However, Section 6 of the Regulations specifically retains the provisions relating to the use and disclosure of personal information for current ADF members still under the previous scheme. This retention is necessary to ensure that personal information is handled in accordance with the statutory requirements set forth in section 36A of the Defence Force (Home Loans Assistance) Act 1990. The Regulations were made under the authority provided in Section 40 of the Act, which allows for the creation of regulations necessary for carrying out the Act.
The Defence Force (Home Loans Assistance) Regulations 2018 impose specific obligations on parties involved in the administration of the home loan assistance scheme for ADF members. Key among these is the requirement to ensure that any use or disclosure of personal information of current ADF members aligns with the prescribed purposes outlined in section 36A of the Act. This includes providing notice to individuals about the intended uses and disclosures of their personal information and obtaining their consent where necessary. The Regulations also mandate that the information be used solely for the purposes of administering benefits under the Act and the scheme, ensuring that any processing of personal data is both lawful and transparent. The consultation process involving the Department of Veterans Affairs, Defence Legal, and the Relocation and Housing Branch in the Department of Defence underscores a collaborative effort to implement these obligations effectively.
Any breach of the Defence Force (Home Loans Assistance) Regulations 2018 could lead to various civil or criminal consequences. For instance, unauthorised use or disclosure of personal information may not only contravene the Privacy Act 1988 but also the specific provisions set forth in Section 6 of the Regulations. Such breaches could result in significant penalties, including fines and other sanctions as prescribed by relevant legislation. The maximum penalties for contravening the Privacy Act 1988 can be substantial, particularly if the breach is deliberate or involves serious misuse of personal data. Given the sensitive nature of personal information, strict adherence to the Regulations is imperative to avoid any legal repercussions.