House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Government Services, the Hon Stuart Robert MP)

OUTLINE

This Bill would:

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make consequential amendments to legislation as a result of the establishment of Services Australia as an Executive Agency under the Public Service Act 1999 (Schedule 1); and

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make related governance changes (Schedule 2).

Financial impact statement

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

NOTES ON CLAUSES

Abbreviations and Acronyms used in this explanatory memorandum

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Acts Interpretation Act means the Acts Interpretation Act 1901

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Acts Interpretation Substituted Reference Order means the Acts Interpretation Substituted Reference Order 2017

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Anti-Money Laundering and Counter-Terrorism Financing Act means the Anti-Money Laundering and Counter-Terrorism Financing Act 2006

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Business Services Wage Assessment Tool Payment Scheme Act means the Business Services Wage Assessment Tool Payment Scheme Act 2015

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CEO means the Chief Executive Officer of Services Australia

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Child Support Assessment Act means the Child Support (Assessment) Act 1989

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Child Support Registration and Collection Act means the Child Support (Registration and Collection) Act 1988

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Data-matching Act means the Data-matching Program (Assistance and Tax) Act 1990

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Dental Benefits Act means the Dental Benefits Act 2008

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DSS means the Department of Social Services

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Family Assistance Act means the A New Tax System (Family Assistance) Act 1999

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Family Assistance Administration Act means the A New Tax System (Family Assistance) (Administration) Act 1999

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FOI Act means the Freedom of Information Act 1982

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Human Services Centrelink Act means the Human Services (Centrelink) Act 1997

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Human Services Medicare Act means the Human Services (Medicare) Act 1973

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My Health Records Act means the My Health Records Act 2012

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National Redress Scheme for Institutional Child Sexual Abuse Act means the National Redress Scheme for Institutional Child Sexual Abuse Act 2018

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Paid Parental Leave Act means the Paid Parental Leave Act 2010

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Public Service Act means the Public Service Act 1999

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Safety Rehabilitation and Compensation Defence-related claims Act means the Safety, Rehabilitation and Compensation (Defence-related claims) Act 1988

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Social Security Act means the Social Security Act 1991

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Social Security Administration Act means the Social Security (Administration) Act 1999

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Student Assistance Act means the Student Assistance Act 1973

Clause 1 sets out how the new Act is to be cited - that is, as the Services Australia Governance Amendment Act 2020.

Clause 2 provides a table setting out the commencement dates of the various sections in, and Schedules to, the Act.

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule has effect according to its terms.

Schedule 1 - Amendments of references relating to Services Australia

Summary

Schedule 1 makes consequential amendments to legislation as a result of the establishment of Services Australia an Executive Agency under the Public Service Act on 1 February 2020. The new Executive Agency replaced the former Department of State named Services Australia, which was formerly the Department of Human Services.

This Schedule will commence on 1 February 2020, the date Services Australia was established as an Executive Agency.

Background

On 1 February 2020:

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a new Administrative Arrangements Order took effect which, among other things, abolished the Department of State named Services Australia (formerly named the Department of Human Services); and

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an order made by the Governor-General in Council under section 65 of the Public Service Act took effect to establish Services Australia as an Executive Agency under that Act, within the Social Services portfolio.

Those administrative changes meant that sections 19 and 19A of the Acts Interpretation Act would have operated from 1 February 2020 to change many references in legislation to the Department of State Services Australia, and its Secretary, to references to DSS or its Secretary. Those changes would have meant that many provisions no longer operated as intended, and Services Australia could not have continued to deliver some programs and services.

To avoid those inappropriate results, the Acts Interpretation Substituted Reference Order (made under section 19B of the Acts Interpretation Act) was amended, with effect from 1 February 2020, to effectively substitute many of those references in legislation to become references to the Executive Agency Services Australia or its CEO.

However, the Acts Interpretation Substituted Reference Order did not make direct textual amendments to legislation. Schedule 1 makes direct textual amendments so that legislation is clear on its face, without the need to refer to another instrument.

Explanation of the changes

This Schedule:

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substitutes references to DHS with references to Services Australia;

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substitutes references to the Secretary of DHS with references to the CEO of Services Australia;

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ensures that information that was held by Services Australia or DHS before it became an Executive Agency continues to be protected by various secrecy provisions;

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protects the name Services Australia from misuse; and

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makes consequential amendments (for example, to remove redundant definitions).

Family Assistance Act

Items 1-3 substitute references to the Secretary of DHS with references to the CEO of Services Australia.

Family Assistance Administration Act

Items 4-6, 9 and 10 substitute references to the Secretary of DHS with references to the CEO of Services Australia, substitute a reference to DHS with a reference to Services Australia, and make consequential amendments.

Items 7 and 8 ensure that information about a person that was held by the former Department of State named the Department of Human Services or Services Australia is protected by the secrecy provisions in the Act.

Anti-Money Laundering and Counter-Terrorism Financing Act

Items 11 and 12 substitute a reference to DHS with a reference to Services Australia, and make a consequential amendment.

Business Services Wage Assessment Tool Payment Scheme Act

Item 13 substitutes a reference to DHS with a reference to Services Australia.

Child Support Assessment Act

Item 14 ensures that information about a person that was obtained from the records of the former Department of State named the Department of Human Services or Services Australia is protected by the secrecy provisions in the Act.

Child Support Registration and Collection Act

Items 15 and 16 substitute a reference to DHS with a reference to Services Australia, and substitute a reference to the Secretary of DHS with a reference to the CEO of Services Australia.

Item 17 ensures that information about a person that was obtained from the records of the former Department of State named the Department of Human Services or Services Australia is protected by the secrecy provisions in the Act.

Data-matching Act

Items 18 and 19 substitute a reference to DHS with a reference to Services Australia, and make a consequential amendment.

Dental Benefits Act

Items 20 and 21 substitute a reference to DHS with a reference to Services Australia, and make a consequential amendment.

FOI Act

Items 22 and 23 substitute a reference to DHS with a reference to Services Australia, and make a consequential amendment.

Human Services Centrelink Act

Items 24-28 substitute references to DHS with references to Services Australia, substitute a reference to the Secretary of DHS with a reference to the CEO of Services Australia, and make a consequential amendment. Item 21 changes the definition of 'Secretary' in the Act to mean the CEO of Services Australia.

Items 29-31 amend subsection 38(4) to add 'Services Australia' to the list of names that are protected by section 38 against unauthorised use.

As the words 'Services' and 'Australia' are commonly used in trading names, the use of one or both of those words, as the name, or part of the name, of a business will only be prohibited if the use of the word or words is, or is likely to be mistaken to be, in connection with Services Australia, or service delivery by the Commonwealth. The prosecution will bear the burden of proving such a connection.

The amendments will ensure that any legal rights to use the 'Services Australia' name that arise before this Act receives the Royal Assent are not affected by these amendments.

The application provision in Item 66 ensures that only conduct occurring after the day that this Act receives the Royal Assent can constitute an offence under section 38(1), to the extent that that the amendments made by Items 29-31 apply to the offence.

Human Services Medicare Act

Item 32 amends the definition of 'Departmental employee' in section 3. Paragraph (a) of the new definition will mean that in most cases 'Departmental employee' will mean an APS employee in Services Australia.

Paragraph (b) of the new definition is necessary so that employees of the Department of Health can continue to perform health provider compliance functions. Paragraph (b) will mean that in a provision (in any Act) that relates to health provider compliance, 'Departmental employee' (within the meaning of the Human Services (Medicare) Act 1973)' will mean an APS employee in the Department of Health. This is a consequence of the Administrative Arrangements Order specifying that the Minister for Health administers some provisions of the Human Services Medicare Act, including the definition of 'Departmental employee', in relation to health provider compliance.

This means that, for example, the references in section 129AAD of the Health Insurance Act to a 'Departmental employee (within the meaning of the Human Services (Medicare) Act 1973)' will refer to APS employees in the Department of Health.

Items 33-38 substitute a reference to the Secretary of DHS with a reference to the CEO of Services Australia, substitute references to DHS with references to Services Australia, and make a consequential amendment. Item 28 amends the definition of 'Secretary' in the Act to mean the CEO of Services Australia.

My Health Records Act

Items 39-41 effectively substitute a reference to the Secretary of DHS with a reference to the CEO of Services Australia, and make a consequential amendment.

National Redress Scheme for Institutional Child Sexual Abuse Act

Item 42 substitutes a reference to DHS with a reference to Services Australia.

Items 43 and 44 remove the requirement for the Minister to give a copy of a security notice, or revocation of a security notice, to the DHS Secretary. This is because all decisions in relation to the Redress scheme are now made by the National Redress Scheme Operator (the Secretary of DSS) or DSS employees. If a security notice is in force in relation to a person, section 64 of the Act makes that person ineligible for redress under the Act.

Items 45-47 ensure that information about a person that was held in the records of the former Department of State named the Department of Human Services or Services Australia can be protected by the secrecy provisions in the Act.

Paid Parental Leave Act

Items 48-50, 54 and 55 substitute a reference to DHS with a reference to Services Australia, substitute references to the Secretary of DSS with a reference to the CEO of Services Australia, and make a consequential amendment.

Items 51-53 ensure that information about a person that was held in the records of the former Department of State named the Department of Human Services or Services Australia is protected by the secrecy provisions in the Act.

Safety Rehabilitation and Compensation Defence-related claims Act

Item 56 effectively substitutes references to the Secretary of DHS, and DHS, with references to the CEO of Services Australia, and Services Australia.

Social Security Act

Items 57-59, 62 and 63 substitute a reference to DHS with a reference to Services Australia, effectively substitute references to the DHS Secretary with references to the CEO of Services Australia, and make a consequential amendment.

Items 60 and 61 ensure that information about a person that was held in the records of the former Department of State named the Department of Human Services or Services Australia is protected by the secrecy provisions in the Act.

Student Assistance Act

Items 64 and 65 substitute a reference to DHS with a reference to Services Australia, and make a consequential amendment.

Application provision-offences

Item 66 is an application provision that ensures the amendments made by items 29-31 of this Schedule will not make a person liable for an offence in relation to conduct that occurs in the period from 1 February 2020 (when this Schedule commences) to the day this Act receives the Royal Assent.

Schedule 2 - Other amendments relating to Services Australia

Summary

Schedule 2 makes governance changes for Services Australia.

The amendments made by this Schedule commence the day after Royal Assent.

Background

Currently, the Human Services Centrelink Act, the Human Services Medicare Act and the Child Support Registration and Collection Act require the Chief Executive Centrelink, Chief Executive Medicare and Child Support Registrar to be different SES employees in Services Australia. It is no longer necessary for those offices to have different occupants, given Services Australia's broad service delivery functions and the overall responsibility of the CEO for the operations of the Executive Agency.

Schedule 2 therefore amends the Human Services Centrelink Act, the Human Services Medicare Act and the Child Support Registration and Collection Act so that the CEO of Services Australia will also be the Chief Executive Centrelink, the Chief Executive Medicare and the Child Support Registrar. This will extend to an acting CEO of Services Australia.

Schedule 2 also amends the Human Services Centrelink Act, the Human Services Medicare Act and the Child Support Registration and Collection Act to allow the Governor-General to appoint a person as Chief Executive Centrelink, Chief Executive Medicare and Child Support Registrar if the office of CEO of Services Australia ceases to exist. The Chief Executive Centrelink, the Chief Executive Medicare and the Child Support Registrar exercise statutory powers and functions under many Acts, so it is essential that there is always a person in those offices for service delivery to continue uninterrupted.

Schedule 2 also amends the Human Services Centrelink Act and the Human Services Medicare Act to require a person acting under a delegation (for example, from the Secretary of DSS) or a sub-delegation (from the Chief Executive Centrelink or Chief Executive Medicare) to comply with any directions from the person delegating or sub-delegating the power to them.

Explanation of the changes

Child Support Registration and Collection Act

Items 1 and 2 amend sections 10 and 10A so that:

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the CEO of Services Australia will automatically be the Child Support Registrar; and

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a person appointed as acting CEO under section 69 of the Public Service Act will automatically be the acting Child Support Registrar.

If the position of CEO of Services Australia has ceased to exist:

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the Governor-General may appoint a person as Child Support Registrar; and

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the Secretary of DSS may appoint a person to act as Child Support Registrar when necessary.

Human Services Centrelink Act

Items 3 and 4 amend sections 7 and 7A so that:

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the CEO of Services Australia will automatically be the Chief Executive Centrelink; and

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a person appointed as acting CEO under section 69 of the Public Service Act will automatically be the acting Chief Executive Centrelink.

If the position of CEO of Services Australia has ceased to exist:

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the Governor-General may appoint a person as Chief Executive Centrelink; and

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the Secretary of DSS may appoint a person to act as Chief Executive Centrelink when necessary.

Items 5 and 6 amend section 12 so that a person acting under a delegation (for example, from the Secretary of DSS) or a sub-delegation (from the Chief Executive Centrelink) must comply with any directions from the person delegating or sub-delegating the power.

For example:

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when the Secretary of DSS delegates a power to the Chief Executive Centrelink, the Secretary could direct that the Chief Executive Centrelink must not sub-delegate that power to any Services Australia employee below a certain APS classification level; and

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the Chief Executive Centrelink could delegate a particular power generally to all Services Australia officers above a certain APS classification level, and direct that officers only exercise that power if it is necessary to perform the functions of their specific role.

New subsection 12(6) ensures that standard provisions in the Acts Interpretation Act that apply to delegations under section 12 also apply to sub-delegations under section 12.

Human Services Medicare Act

Items 7 and 8 amend sections 4 and 4A so that:

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the CEO of Services Australia will automatically be the Chief Executive Medicare; and

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a person appointed as acting CEO under section 69 of the Public Service Act will automatically be the acting Chief Executive Medicare.

If the position of CEO of Services Australia has ceased to exist:

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the Governor-General may appoint a person as Chief Executive Medicare; and

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the Secretary of DSS may appoint a person to act as Chief Executive Medicare when necessary.

Items 9 and 10 amend section 8AC so that a person acting under a delegation (for example, from the Secretary of DSS) or a sub-delegation (from the Chief Executive Medicare) must comply with any directions from the person delegating or sub-delegating the power.

For example:

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when the Secretary of the Department of Health delegates a power to the Chief Executive Medicare, the Secretary could direct that the Chief Executive Medicare must not sub-delegate that power to any Services Australia employee below a certain APS classification level; and

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the Chief Executive Medicare could delegate a particular power generally to all Services Australia officers above a certain APS classification level, and direct that officers only exercise that power if it is necessary to perform the functions of their specific role.

New subsection 8AC(6) ensures that standard provisions in the Acts Interpretation Act that apply to delegations under section 8AC also apply to sub-delegations under section 8AC.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

SERVICES AUSTRALIA GOVERNANCE AMENDMENT BILL 2020

The Bill 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 Bill

The Bill:

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amends legislation as a result of the abolition of Services Australia as a Department of State on 1 February 2020 and its replacement with an Executive Agency under the Public Service Act 1999; and

•

makes related governance changes.

The amendments:

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replace references to the former Department of State Services Australia and its Secretary with references to the new Executive Agency Services Australia and its Chief Executive Officer (CEO);

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make provision for the CEO of Services Australia to occupy three statutory offices - Chief Executive Centrelink, Chief Executive Medicare and Child Support Registrar; and

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modify powers of delegation to the Chief Executive Centrelink and Chief Executive Medicare, and those office-holders' powers of sub-delegation.

The amendments described above are all machinery or technical in nature and do not affect the rights or obligations of any person.

The Bill also protects the name 'Services Australia' from unauthorised use. A person will not be able to use the name for a commercial purpose, if that use asserts or implies a connection with Services Australia or broader Australian Government services delivery, without written consent from the CEO of Services Australia. Existing rights (eg current trade marks) will not be affected.

Human rights implications

The protected name amendments limit the right to freedom of expression, primarily in commercial advertising. They broaden the offence provisions in the Human Services (Centrelink) Act 1997, in a limited way. The amendments therefore limit the rights in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR).

The broader offence will only apply if the prosecution proves that a person's use of the name Services Australia asserts or implies a false connection to Services Australia or broader Australian Government service delivery. Exercise of existing rights (for example, continued use of existing registered trade marks) will not be affected.

The modest limitations imposed by the amendments on the right to freedom of expression are necessary to ensure that people are not mislead into thinking that, for example, a business using the Services Australia name is part of, or connected to, the Australian Government. For example, social security recipients could mistakenly provide sensitive personal information to an organisation that could be used to their financial and other detriment. The limitations are a proportionate way of reducing that sort of harm, and consistent with article 19(3). In this way, the amendments indirectly support the right to an adequate standard of living in article 11 of the International Covenant on Economic, Social and Cultural Rights.

Conclusion

The Bill is compatible with human rights as the modest limitations it imposes on the right to freedom of expression are necessary and proportionate to protect social security recipients from being mislead to their detriment.