EXPLANATORY STATEMENT
Human Services (Medicare) (Designated Program Act) Specification 2011 (No. 2)
Background
The Human Services Legislation Amendment Act 2011 (the Amendment Act) integrated Medicare Australia and Centrelink into the Department of Human Services (the Department) from 1 July 2011. The Amendment Act amended the Medicare Australia Act 1973 and the Commonwealth Services Delivery Agency Act 1997, and renamed the Acts as the Human Services (Medicare) Act 1973 (Medicare Act) and the Human Services (Centrelink) Act 1997 respectively.
The Amendment Act inserted a new section 43A (the “multiple secrecy provisions”) into the Medicare Act, with effect from 1 July 2011. Section 43A sets out how secrecy laws apply in a situation where the Department holds particular customer information in circumstances where, on their face, two or more different secrecy regimes apply to the use or disclose of that information by the Department. Section 43A applies equally to information collected by the Department prior to 1 July 2011 and to information collected on or 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) that have secrecy regimes, the Department is able to use and disclose that information if it complies with one of the secrecy regimes.
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.
Section 43A applies to secrecy regimes in “designated program Acts”. 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 Human Services for the purposes of paragraph 43A(3)(o).
The Human Services (Medicare) (Designated Program Act) Specification 2011
(No. 2) (the Specification) specifies the Taxation Administration Act 1953 (TAA) as a designated program Act for the purposes of paragraph 43A(3)(o).
The Australian Taxation Office (ATO) regularly discloses taxation information to the Chief Executive Medicare for the purpose of administering Part 2-2 and 6-4 of the Private Health Insurance Act 2007. Some of this taxation information is protected by on-disclosure restrictions in Division 355 of Schedule 1 of the TAA. This information is also protected by the secrecy provisions in the Private Health Insurance Act 2007. The specification of the TAA as a designated program Act for the purposes of paragraph 43A(3)(o) ensures that the Chief Executive Medicare and the Department are able to handle all customer information held for the purpose of the Private Health Insurance Act 2007 in accordance with the secrecy regime in that Act, including information disclosed by the ATO.
Consultation
No public consultation was undertaken in relation to the Specification as no consultation was considered necessary. The Specification makes a technical, machinery amendment to the law to provide certainty for the Chief Executive Medicare and employees of the Department in relation to the requirements for the handling of customer information. The Specification only affects the obligations of the Secretary of the Department, the Chief Executive Medicare and employees of the Department, not other parts of government or the community more generally.
The Specification commences on the day it is registered on the Federal Register of Legislative Instruments.
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. 2) was introduced to address the complexity of handling customer information under multiple secrecy regimes within the Department of Human Services. Enacted in 2011, this legislation is a specification made by the Minister for Human Services under the Human Services Legislation Amendment Act 2011. The purpose of the Specification is to ensure that the Department of Human Services can appropriately manage and disclose information that falls under different secrecy provisions, such as those outlined in the Taxation Administration Act 1953 and the Private Health Insurance Act 2007. By identifying the TAA as a designated program Act, the Specification allows for seamless compliance with secrecy requirements, thereby streamlining the administration of various government programs. The Specification aims to provide clarity and certainty for the Chief Executive Medicare and the Department's employees regarding the handling of sensitive information, without necessitating public consultation due to its technical nature.
Scope and Application
The Human Services (Medicare) (Designated Program Act) Specification 2011 (No. 2) is a legislative instrument that specifies the Taxation Administration Act 1953 as a designated program Act for the purposes of section 43A of the Human Services (Medicare) Act 1973. This specification ensures that the Chief Executive Medicare and the Department of Human Services can handle customer information in accordance with the secrecy regime applicable under the Private Health Insurance Act 2007, which includes information disclosed by the Australian Taxation Office. The Specification applies to the use and disclosure of customer information held by the Department of Human Services, particularly when the information is subject to multiple secrecy regimes. This legislative instrument is a technical amendment aimed at clarifying the obligations of the Department of Human Services and the Chief Executive Medicare in handling sensitive customer information, without necessitating public consultation or satisfying any statutory preconditions. It applies to the Commonwealth jurisdiction and is effective from the day it is registered on the Federal Register of Legislative Instruments.
Key Provisions
The Human Services (Medicare) (Designated Program Act) Specification 2011 (No. 2) (Specification) is a legislative instrument that clarifies the application of secrecy laws to the Department of Human Services, particularly in relation to customer information that falls under multiple secrecy regimes. This instrument, which does not require public consultation, aims to provide certainty for the Chief Executive Medicare and employees of the Department regarding the handling of customer information. It specifies the Taxation Administration Act 1953 (TAA) as a designated program Act under section 43A of the Medicare Act, which applies to situations where the Department holds information subject to different secrecy laws. This ensures that the Chief Executive Medicare and the Department can manage customer information in accordance with the secrecy regime in the Private Health Insurance Act 2007, including information disclosed by the Australian Taxation Office (ATO). The Specification is a technical amendment that affects only the obligations of the Secretary of the Department, the Chief Executive Medicare, and the employees of the Department.
Under the Human Services (Medicare) (Designated Program Act) Specification 2011 (No. 2), the Department of Human Services, including the Chief Executive Medicare and its employees, is required to adhere to the secrecy provisions outlined in the specified designated program Acts. In this case, the TAA is specified, allowing the Department to manage customer information in compliance with the secrecy regime set forth in the Private Health Insurance Act 2007. This is particularly relevant when the Department holds information that is subject to the on-disclosure restrictions in Division 355 of Schedule 1 of the TAA and the secrecy provisions in the Private Health Insurance Act 2007. The Specification ensures that the Department can appropriately handle customer information disclosed by the ATO for the purpose of administering Part 2-2 and 6-4 of the Private Health Insurance Act 2007. The obligations under this Specification are designed to streamline the process and ensure compliance with the secrecy laws.
The Specification does not impose any new offences or penalties. Instead, it provides clarity on the application of existing secrecy laws to the Department of Human Services. However, it is important to note that the underlying secrecy regimes, such as those in the TAA and the Private Health Insurance Act 2007, may include specific offences and penalties for breaches. For instance, Division 355 of Schedule 1 of the TAA includes provisions for penalties for unauthorized disclosures of tax information, which could apply to any breaches of the secrecy provisions by the Department of Human Services. The Specification itself is a technical amendment and does not introduce new penalties, but it ensures that the Department operates within the bounds of the existing secrecy laws.
The Specification does not specify any maximum penalties, as it is not introducing new offences. However, the underlying secrecy regimes may include penalties for breaches. For example, the Private Health Insurance Act 2007 includes civil and criminal penalties for breaches of its secrecy provisions, and Division 355 of Schedule 1 of the TAA includes penalties for unauthorized disclosures of tax information. These penalties can include fines and, in some cases, imprisonment. The Specification ensures that the Department of Human Services complies with these existing penalties by adhering to the designated secrecy regimes. The Specification's primary function is to provide clarity and certainty regarding the handling of customer information subject to multiple secrecy laws, thereby ensuring that the Department operates within the legal framework established by the relevant Acts.