EXPLANATORY STATEMENT
Human Services (Medicare) (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, and renames the Acts as the Human Services (Medicare) Act 1973 (Medicare Act) and the Human Services (Centrelink) Act 1997 respectively.
The Amendment Act inserts a new section 43A (the “multiple secrecy provisions”) into the Medicare Act, with effect from 1 July. 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 “designated program Acts”. Section 43A 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 43A can be found at pages 32-34 of the Revised Explanatory Memorandum to the Human Services Legislation Amendment Bill 2011.
A list of designated program Acts is set out in subsection 43A(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 43A(3)(o).
The Human Services (Medicare) (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 43A(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 43A(3)(o) prior to the commencement of section 43A.
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.
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 43A of the Medicare Act.
No statutory preconditions needed to be satisfied prior to the making of the Specification.
Overview
The Human Services (Medicare) (Designated Program Act) Specification 2011 (No. 1) was introduced to address the legal uncertainties that arose from the integration of Medicare Australia and Centrelink into the Department of Human Services (DHS) under the Human Services Legislation Amendment Act 2011. This Act was enacted to align with the policy objective of enhancing service delivery efficiency by streamlining the administration of various government programs under a single department. The Amendment Act also renamed the Medicare Australia Act 1973 and the Commonwealth Services Delivery Agency Act 1997 as the Human Services (Medicare) Act 1973 and the Human Services (Centrelink) Act 1997, respectively. The new section 43A, referred to as the "multiple secrecy provisions," was introduced to clarify how secrecy laws apply when DHS holds the same piece of information obtained under two or more designated program Acts. This provision ensures that DHS can use and disclose such information if it complies with at least one of the applicable secrecy provisions. The Specification specifies the Australian Prudential Regulation Authority Act 1988 as a designated program Act, thus providing clarity on the secrecy regime for customer information protected under both the APRA Act and other Acts delivered by DHS.
Scope and Application
The Human Services (Medicare) (Designated Program Act) Specification 2011 (No. 1) applies to the Australian Prudential Regulation Authority Act 1988 (APRA Act) as a designated program Act for the purposes of the newly inserted section 43A in the Human Services (Medicare) Act 1973. This specification allows the Department of Human Services (DHS) to use and disclose information obtained under the APRA Act if it complies with the applicable secrecy provisions, addressing any uncertainty regarding the secrecy regime when information is protected under multiple acts. The legislation applies to DHS officers who handle information obtained under the APRA Act while delivering the early release of superannuation benefits on compassionate grounds program (ROB program) on behalf of the Australian Prudential Regulation Authority (APRA). This Act is specified as a designated program Act to ensure clarity in the application of secrecy provisions to customer information that is protected under both the APRA Act and another act under which DHS delivers services. The geographic and jurisdictional reach of this Specification is national, given that the APRA Act and the ROB program operate across Australia. There are no stated exclusions, exemptions, or thresholds specified within this legislation. The Specification extends the application of section 43A through subordinate instruments by including the APRA Act within the list of designated program Acts, thereby clarifying the secrecy provisions applicable to DHS officers handling information under the ROB program.
Key Provisions
The Human Services (Medicare) (Designated Program Act) Specification 2011 (No. 1) introduces a key provision under section 43A of the Human Services (Medicare) Act 1973, which addresses how secrecy laws apply when the Department of Human Services (DHS) holds the same piece of information under two or more designated program Acts (subsection 43A(3)). This section, effective from 1 July 2011, allows DHS to use and disclose information if it complies with any one of the secrecy provisions applicable to that information (subsection 43A(2)). This provision applies to both pre-existing and newly acquired information. The Specification further clarifies this regime by specifying the Australian Prudential Regulation Authority Act 1988 (APRA Act) as a designated program Act, ensuring clarity in the application of secrecy laws to customer information managed by DHS (subsection 43A(3)(o)).
The obligations imposed on the parties governed by the Specification include compliance with the secrecy provisions of the designated program Acts. Specifically, DHS must ensure that any use or disclosure of information obtained under multiple designated program Acts adheres to the applicable secrecy provisions. This involves understanding and applying the secrecy requirements of each relevant Act, including the APRA Act and any other designated program Acts, to safeguard sensitive customer information. The Specification mandates that DHS officers must be aware of and abide by the secrecy laws pertinent to the information they handle, which may differ depending on the source and nature of the information.
Breaches of the secrecy provisions under the designated program Acts can result in significant penalties. For instance, violations of the APRA Act's secrecy provisions can lead to substantial fines and even imprisonment. Under section 56 of the APRA Act, penalties for unauthorised use or disclosure of protected information can include fines of up to $210,000 for individuals and $1,050,000 for bodies corporate, alongside potential criminal charges. Additionally, any officer of DHS found to have contravened the secrecy provisions may face civil or criminal consequences, including fines and imprisonment, depending on the severity of the breach. The Specification underscores the importance of adhering to these laws to protect the confidentiality and integrity of customer information.