EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 176
Issued by the Authority of the Minister for Veterans' Affairs
Defence Service Homes Act 1918
Defence Service Homes Amendment Regulations 2008 (No. 1)
The Defence Service Homes Act 1918 (the Act) provides a home ownership assistance scheme for members of the Australian Defence Force (ADF) and for certain other persons.
Section 51 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters, which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for giving effect to the Act.
In addition to the home ownership scheme under the Act, there is a similar home ownership scheme under the Defence Force (Home Loans Assistance) Act 1990 and a new scheme has been established under the Defence Home Ownership Assistance Scheme Act 2008 (the DHOAS Act).
The three schemes operate concurrently. However, accessing subsidy under one of the two earlier schemes will reduce the entitlement to a subsidy under the new scheme. The two earlier schemes were mutually exclusive with members of the ADF being required to make an election between those schemes.
In order for the three schemes to be effectively administered (particularly to avoid ‘double-dipping’), it is necessary that personal information obtained under a scheme is lawfully available to the administrators, and associated parties, of the other schemes.
The Defence Home Ownership Assistance Scheme (Consequential Amendments) Act 2008 deals with consequential matters in connection with the DHOAS Act and inserted new section 45C into the Act. This section enables the administrator and associated parties, e.g. credit providers, under the Act to lawfully use personal information obtained under the Act, and to lawfully disclose that information to the administrator and associated parties of another scheme, if the use or disclosure is for a prescribed purpose.
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The Regulations set out the purposes for which personal information obtained under the Act may be used or disclosed by the administrator of the home ownership scheme under the Act, and by associated parties, for the purposes of the Act, and disclosed to and used by the administrators and associated parties of the other two home ownership schemes.
The purposes relate only to the administration of the three home ownership schemes. The Regulations are needed to ensure that any use or disclosure of personal information by the administrator or associated parties, is lawful and therefore would not contravene the Privacy Act 1988.
Further details of the Regulations are contained in the Attachment.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
The Department of Defence has prepared virtually identical Regulations and in the process consulted the Department of Prime Minister and Cabinet (PM&C) and the Australian Government Solicitor (AGS). The outcome was favourable. AGS recommended several minor changes to the Regulations and these were accepted and those changes are also incorporated in the attached Regulations.
The Office of the Privacy Commissioner was consulted in respect of the attached Regulations and it raised a number of matters for discussion. After receiving the response of the Department of Veterans’ Affairs, the Office advised that it had no further comments to make.
The Rule-Maker considered that in light of the consultation with PM&C, AGS and the Office of the Privacy Commissioner, it was unnecessary to consult ex-service organisations (ESOs) because the privacy issues had been thoroughly canvassed with expert advisers and because there was little scope available for ESOs to make any useful comment in that personal information needed to be exchanged between the administrators of the various schemes in order to maintain their integrity. Further,
the Rule-Maker took into account that applicants for a subsidy under any of the three home ownership schemes will be informed of the situations in which their personal information may be used or disclosed and their consent will be obtained as part of the process.
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ATTACHMENT
Details of the Defence Service Homes Amendment Regulations 2008 (No. 1)
Regulation 1 sets out the name of the Regulations – Defence Service Homes Amendment Regulations 2008 (No. 1).
Regulation 2 specifies that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 provides that Schedule 1 amends the Defence Service Homes Regulations (the Principal Regulations).
Schedule 1
Item [1] provides that the name of the Principal Regulations be changed to the Defence Service Homes Regulations 1936 in accordance with current drafting practice.
Item [2] inserts a new regulation 78A into the Principal Regulations.
New regulation 78A sets out the purposes for which personal information about the persons specified in subsection 45C(1) of the Defence Service Homes Act 1918 (the Act) (e.g. applicant for a certificate of entitlement) may be used by or disclosed between the administrators (and associated parties) of the three schemes.
The Privacy Act 1988 protects personal information from unauthorised use and disclosure. If a use or disclosure of personal information under the Act is outside of a purpose prescribed by the Regulations, it might not, under the Privacy Act 1988, be ‘required or authorised by or under law’ (a lawful basis for using/disclosing personal information) and could, therefore, be an unauthorised use or disclosure of the relevant information.
The purposes prescribed for use and disclosure of personal information relate directly to the administration of benefits under the Act, the Defence Force (Home Loans Assistance) Act 1990 (the DFHLA Act) or the Defence Home Ownership Assistance Scheme Act 2008 (the DHOAS Act). For example, they will authorise:
- the administrator under the Act to inform a credit provider under the Act of an error in a person’s subsidy amount;
- the administrator and a credit provider under the Act to use information provided by the administrator under the DHOAS Act when a person has chosen to extinguish their rights to
subsidy under section 24A of the Act by taking a subsidy under the DHOAS Act; and
- the administrator under the Act to disclose to the administrator under the DHOAS Act (DHOAS administrator), details of a person’s subsidy entitlement period which they have already accessed under the Act for use by the DHOAS administrator in respect of an application by the person for a subsidy under the DHOAS Act. This will enable the person to be given their full entitlement to subsidy under the DHOAS Act.
Applicants for a subsidy under the Act, the DFHLA Act and the DHOAS Act will be informed of the situations in which their personal information may be used or disclosed and their consent to that use or disclosure will be sought as part of the process.