EXPLANATORY STATEMENT
Human Services (Centrelink) (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 Amendment Act amends the Medicare Australia Act 1973 and the Commonwealth Services Delivery Agency Act 1997 (Centrelink Act), and renames the Acts as the Human Services (Medicare) Act 1973 and the Human Services (Centrelink) Act 1997 respectively.
The Amendment Act inserts a new section 40A (the “multiple secrecy provisions”) into the Centrelink Act, with effect from 1 July. 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 “designated program Acts”. Section 40A 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 family assistance 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 40A can be found at pages 68-70 of the Revised Explanatory Memorandum to the Human Services Legislation Amendment Bill 2011.
A list of designated program Acts is set out in subsection 40A(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 40A(3)(o).
The Human Services (Centrelink) (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 40A(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 40A(3)(o) prior to the commencement of section 40A.
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.
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 40A of the Centrelink Act.
No statutory preconditions needed to be satisfied prior to the making of the Specification.
Overview
The Human Services (Centrelink) (Designated Program Act) Specification 2011 (No. 1) was introduced to address the legal uncertainty that arose from the integration of Medicare Australia and Centrelink into the Department of Human Services (DHS) on 1 July 2011. This legislative instrument specifies the Australian Prudential Regulation Authority Act 1988 as a designated program Act under the new section 40A of the Human Services (Centrelink) Act 1997. This section, known as the "multiple secrecy provisions," aims to clarify the application of secrecy laws when DHS holds the same piece of information about a person under more than one program, such as family assistance and Medicare. By specifying the APRA Act, the legislation ensures that the correct secrecy provisions apply to customer information obtained through the early release of superannuation benefits on compassionate grounds program, thereby avoiding any legal ambiguity.
This specification was enacted by the Minister under subsection 4(1) of the Acts Interpretation Act 1901, prior to the commencement of section 40A. It aligns with the policy objective of the Human Services Legislation Amendment Act 2011, which integrates service delivery under the DHS and clarifies the secrecy regime applicable to various programs. The specification does not require any additional consultation beyond what was undertaken during the service delivery reforms and the enactment of the Amendment Act. It commences on 1 July 2011, simultaneously with the new section 40A.
Scope and Application
The Human Services (Centrelink) (Designated Program Act) Specification 2011 (No. 1) applies to the Australian Prudential Regulation Authority Act 1988, identifying it as a designated program Act for the purposes of the multiple secrecy provisions introduced by the Human Services Legislation Amendment Act 2011. This Act applies to the Department of Human Services, which integrates Medicare Australia and Centrelink, and concerns the handling of information under multiple secrecy provisions when the department holds the same piece of information obtained under two or more designated program Acts. The Specification ensures that the Department of Human Services can use and disclose information if it complies with one of the applicable secrecy provisions, thereby avoiding legal uncertainty regarding the appropriate secrecy regime. The Specification is effective from 1 July 2011, the same date as the commencement of section 40A of the Centrelink Act. The Specification is made under the authority of the Acts Interpretation Act 1901 and does not require any statutory preconditions to be met prior to its making.
Key Provisions
The Human Services (Centrelink) (Designated Program Act) Specification 2011 (No. 1) (Specification) is a legislative instrument that specifies the Australian Prudential Regulation Authority Act 1988 (APRA Act) as a designated program Act under section 40A of the Human Services (Centrelink) Act 1997. This specification is important because it clarifies the secrecy regime that applies to certain programs delivered by the Department of Human Services (DHS). Section 40A of the Centrelink Act (subsection 40A(3)) allows the Minister to specify an Act as a designated program Act if it is listed in subsection 40A(3), or if it is specified in a legislative instrument made by the Minister under paragraph 40A(3)(o). The Specification comes into effect on 1 July 2011, the same day as section 40A of the Centrelink Act.
The Specification imposes obligations on the Department of Human Services to ensure that the information obtained under the APRA Act is protected and used in accordance with the secrecy provisions applicable to that information. This means that DHS officers must comply with the secrecy provisions of the APRA Act when handling information obtained under the ROB program, and they must also comply with the secrecy provisions of any other designated program Act if they are handling the same piece of information. This ensures that customer information is protected and used appropriately, and that there is no legal uncertainty as to which set of secrecy provisions should apply to that information.
There are no specific offences, penalties, or consequences outlined in the Specification for breach of the designated program Act provisions. However, breaches of the secrecy provisions of the APRA Act or any other designated program Act may result in civil or criminal liability, depending on the circumstances of the breach. The maximum penalties for breaches of the secrecy provisions of the APRA Act are set out in section 57 of that Act, and can include fines of up to $22,200 for individuals and $111,000 for bodies corporate, as well as imprisonment for up to two years. Similarly, breaches of the secrecy provisions of other designated program Acts may result in civil or criminal liability, depending on the provisions of those Acts.
In summary, the Human Services (Centrelink) (Designated Program Act) Specification 2011 (No. 1) specifies the APRA Act as a designated program Act under section 40A of the Centrelink Act. This ensures that DHS officers handling information obtained under the ROB program comply with the secrecy provisions of the APRA Act, and that there is no legal uncertainty as to which set of secrecy provisions should apply to that information. The Specification imposes obligations on the Department of Human Services to ensure that customer information is protected and used appropriately, and there may be civil or criminal liability for breaches of the secrecy provisions of the APRA Act or any other designated program Act.