House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston)

OUTLINE

This Bill would:

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make minor and technical amendments to social services legislation, including consequential amendments to other legislation (Schedules 1 and 3); and

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allow a Royal Commission to compel production of information protected by certain Social Services portfolio legislation (Schedule 2).

Financial impact statement

STATEMENTS OF COMPATIBILITY WITH HUMAN RIGHTS

The statements of compatibility with human rights appear at the end of this explanatory memorandum.

NOTES ON CLAUSES

Abbreviations and Acronyms used in this explanatory memorandum

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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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Disability Services Act means the Disability Services Act 1986

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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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Family Law Act means the Family Law Act 1975

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Income Tax Assessment Act 1936 means the Income Tax Assessment Act 1936

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Income Tax Assessment Act 1997 means the Income Tax Assessment Act 1997

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National Disability Insurance Scheme Act means the National Disability Insurance Scheme Act 2013

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Royal Commissions Act means the Royal Commissions Act 1902

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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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Veterans' Entitlements Act means the Veterans' Entitlements Act 1986

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Welfare Reform Act means the Social Services Legislation Amendment (Welfare Reform) Act 2018.

Clause 1 sets out how the new Act is to be cited - that is, as the Social Services and Other Legislation Amendment (Omnibus) 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 relating to social security

Summary

Schedule 1 amends the Social Security Administration Act so that the provisions that establish offences for providing false and misleading statements or documents capture circumstances when the information is not provided to a natural person. This will ensure that, for example, a recklessly false statement a person makes in an online claim that is assessed through an automated process can be a contravention of the offence provisions.

Schedule 1 commences the day after the Royal Assent.

Background

Sections 213 and 214 of the Social Security Administration Act are offences of making false or misleading statements, or presenting false or misleading documents, to an officer, where there is the element of recklessness.

Explanation of the changes

Social Security Administration Act

Item 1 amends section 213 so that it also prohibits a person from making a false statement that could deceive Services Australia generally, not just a particular officer.

Item 2 amends section 214 so that it also prohibits a person making a false or misleading statement, or presenting a false or misleading document, to Services Australia generally, not just to a particular officer.

Schedule 2 - Disclosure for the purposes of Royal Commissions

Summary

Schedule 2 amends the Family Assistance Administration Act, the Business Services Wage Assessment Tool Payment Scheme Act, the Disability Services Act and the Social Security Administration Act. The amendments would require person served with a formal notice or summons by a Royal Commission to produce documents or information, or give evidence, to comply with that requirement even if the document or information is protected by secrecy provisions in those Acts. The amendments will ensure that the production or disclosure of the protected information, or giving of evidence including the protected information, will not breach confidentiality provisions of those Acts.

The amendments mirror those recently made to the National Disability Insurance Scheme Act by the National Disability Insurance Scheme Amendment (Streamlined Governance) Act 2019.

Schedule 2 commences the day after the Royal Assent.

Background

Officers cannot ordinarily be compelled to produce protected information or disclose protected information to a court, tribunal or authority or person that has power to require the production of documents or answering of questions (section 80 of the Business Services Wage Assessment Tool Payment Scheme Act, subsection 28(4) of the Disability Services Act, section 167 of the Family Assistance Administration Act and section 207 of the Social Security Administration Act).

It is possible for an agency head to agree to provide such information under existing sections (section 81 of the Business Services Wage Assessment Tool Payment Scheme Act, subsection 28(7) of the Disability Services Act, section 168 of the Family Assistance Administration Act and section 208 of the Social Security Administration Act). However, this cannot be compelled. It is appropriate for a Royal Commission to be able to access all information it requires to properly conduct its inquiries, subject only to the limitations in the Royal Commissions Act.

In order to avoid delay and increase public confidence in the conduct of a Royal Commission, these amendments will result in any information a Royal Commission formally seeks from a department being required to be provided to the Royal Commission.

This is subject only to any claims of public interest immunity or similar. Any person compelled by a Royal Commission to produce documents or give evidence may decline to provide that document or evidence on the basis they have a reasonable excuse for not providing that information (see generally section 3 of the Royal Commissions Act). Examples of reasonable excuse are legal professional privilege and public interest immunity. Maintaining this exception places the department in the same position as any other person served with a requirement by a Royal Commission.

In addition to the limitations on compulsion, the production or disclosure of protected information would generally be subject to the confidentiality provisions of the Act concerned. The amendments will ensure that in giving such information to a Royal Commission, department (or their officers) will not breach the confidentiality provisions of the Act concerned. Once disclosed to a Royal Commission, the Royal Commission's use and disclosure of the information for the purposes of undertaking its inquiry under the Royal Commissions Act will not breach the confidentiality provisions of the Act concerned. The Royal Commission will determine its own processes for handling information that is personal and sensitive. However, where it needs to use this information to effectively conduct its inquiry and make recommendations, or to allow others to consider contraventions of laws, it will be able to do so.

Explanation of the changes

Family Assistance Administration Act

Items 1 and 2 amend sections 167 and 168 of the Family Assistance Administration Act.

Item 2 inserts new subsection 168(5). Section 168 provides circumstances in which the Secretary may disclose protected information without this being a breach of the confidentiality provisions.

New subsection 168(5) provides that if the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement under the Royal Commissions Act, and in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information, then the Secretary or officer must disclose that information.

This is subject only to the Royal Commissions Act, which then allows reliance upon reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is required despite section 164, which ordinarily renders disclosure an offence, and section 167, which prevents such a requirement being imposed in other circumstances. Item 1 amends section 167 to ensure this result.

The information is taken to have been disclosed for the purposes of the Royal Commissions Act and for the purposes of the Royal Commission. As a result of paragraph 162(2)(e) of the Family Assistance Administration Act and section 6F of the Royal Commissions Act, the Royal Commission may only use the information for the purpose for which the information was disclosed. Any use outside that purpose would not come within the exception.

Business Services Wage Assessment Tool Payment Scheme Act

Items 3 and 4 amend sections 80 and 81 of the Business Services Wage Assessment Tool Payment Scheme Act.

Item 4 inserts new subsection 81(4). Section 81 provides circumstances in which the Secretary may disclose protected information without this being a breach of the confidentiality provisions.

New subsection 81(4) provides that if the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement under the Royal Commissions Act, and in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information, then the Secretary or officer must disclose that information.

This is subject only to the Royal Commissions Act, which then allows reliance upon reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is required despite section 77, which ordinarily renders disclosure an offence, and section 80, which prevents such a requirement being imposed in other circumstances. Item 3 amends section 80 to ensure this result.

The information is taken to have been disclosed for the purposes of the Royal Commissions Act and for the purposes of the Royal Commission. As a result of paragraph 75(2)(e) of the Business Services Wage Assessment Tool Payment Scheme Act and section 6F of the Royal Commissions Act, the Royal Commission may only use the information for the purpose for which the information was disclosed. Any use outside that purpose would not come within the exception.

Disability Services Act

Items 5 and 6 amend section 28 of the Disability Services Act.

Item 6 inserts new subsection 28(7A). Section 28, in particular subsections 28(5) and (7), provides circumstances in which the Secretary may disclose protected information without this being a breach of the confidentiality provisions.

New subsection 28(7A) provides that if the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement under the Royal Commissions Act, and in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information, then the Secretary or officer must disclose that information.

This is subject only to the Royal Commissions Act, which then allows reliance upon reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is required despite subsection 28(2), which together with subsection 28(3), ordinarily renders disclosure an offence. Item 5 amends subsection 28(4), which prevents such a requirement being imposed in other circumstances, to ensure this result.

The information is taken to have been disclosed for the purposes of the Royal Commissions Act and for the purposes of the Royal Commission. As a result of section 6F of the Royal Commissions Act, the Royal Commission may only use the information for the purpose for which the information was disclosed. Any use outside that purpose would not be authorised.

Social Security (Administration) Act

Items 7 and 8 amend sections 207 and 208 of the Social Security Administration Act.

Item 8 inserts new subsection 208(5). Section 208 provides circumstances in which the Secretary may disclose protected information without this being a breach of the confidentiality provisions.

New subsection 208(5) provides that if the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement under the Royal Commissions Act, and in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information, then the Secretary or officer must disclose that information.

This is subject only to the Royal Commissions Act, which then allows reliance upon reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is required despite section 204, which ordinarily renders disclosure an offence, and section 207, which prevents such a requirement being imposed in other circumstances. Item 7 amends section 207 to ensure this result.

The information is taken to have been disclosed for the purposes of the Royal Commissions Act and for the purposes of the Royal Commission. As a result of paragraph 202(2)(e) of the Social Security Administration Act and section 6F of the Royal Commissions Act, the Royal Commission may only use the information for the purpose for which the information was disclosed. Any use outside that purpose would not come within the exception.

Application provision

Item 9 makes the new obligations to produce information or documents to a Royal Commission apply to:

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information covered by a notice or requirement from a Royal Commission that is served or made after commencement; and

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information that existed before or after commencement.

Schedule 3 - Technical amendments

Summary

Schedule 3 makes:

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technical amendments to social services legislation to:

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correct errors and anomalies; and

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repeal obsolete provisions; and

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consequential amendments to other Acts.

Background

The amendments made by Schedule 3 are divided into three Parts, each with different commencement provisions.

The amendments made by Part 1 of Schedule 3 ( items 1-125 ) commence the day after Royal Assent.

The provisions that are amended by Part 2 of Schedule 3 ( items 126-147 ) and Part 3 of Schedule 3 ( items 148 and 149 ) have already been amended by the Welfare Reform Act. Some of those Welfare Reform Act amendments commence on 20 September 2020, and others commence on 1 January 2022. The amendments proposed by this Bill to those provisions therefore need to take into account the future commencement of those Welfare Reform Act amendments. This means that Part 2 and Part 3 of Schedule 3 need special commencement provisions:

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Part 2 commences on 1 January 2022, because that is the commencement of the Welfare Reform Act amendments to the provisions amended by Part 2;

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Part 3 commences on 20 September 2020, or the day after Royal Assent (if that is later), because 20 September 2020 is the commencement of the Welfare Reform Act amendments to the provisions amended by Part 3.

Explanation of the changes

Part 1 - Main technical amendments

Income Tax Assessment Act 1936

Item 1 removes a reference to Mature Age Allowance and Mature Age Partner Allowance, which are closed to new recipients and have no ongoing recipients.

Income Tax Assessment Act 1997

Items 2-4 remove provisions relating to the one-off payments to older Australians in 2006, 2007 and 2008. Those provisions are no longer necessary.

Items 5-9 remove references to Mature Age Allowance and Mature Age Partner Allowance, which are closed to new recipients and have no ongoing recipients.

National Disability Insurance Scheme Act

Item 10 corrects a punctuation error.

Social Security Act

Items 11, 12, 14, 15, 17-27, 29-46, 48-52, 66, 73, 75-95 and 99 remove all provisions relating to Mature Age Allowance and Mature Age Partner Allowance, which are closed to new recipients and have no ongoing recipients.

Items 13, 16, 53-65, 67-72 and 74 remove all provisions relating to a 'directed termination payment' within the meaning of section 82-10F of the Income Tax (Transitional Provisions) Act 1997, because that type of payment no longer exists.

Item 28 removes provisions relating to the one-off payments to older Australians in 2006, 2007 and 2008. Those provisions are no longer necessary.

Item 47 amends the note to subsection 1061ZG(1) to update the reference to the maximum portability period for the Commonwealth Seniors Health Card.

Items 96-98 correct duplicated numbering in section 1223.

Item 100 amends subsection 1237(1) to include section 1237AB as a specified provision setting out when the Secretary may waive the Commonwealth's right to recover a debt. Section 1237AB allows the Secretary to waive a class of debts.

Items 101, 103, 104 and 107-117 repeal transitional provisions that no longer apply to any person.

Items 102, 105 and 106 repeal transitional provisions that relate to payments that are now made under the Family Assistance Act and the Family Assistance Administration Act.

Social Security Administration Act

Items 118, 120 and 121 remove provisions relating to the one-off payments to older Australians in 2006, 2007 and 2008. Those provisions are no longer necessary.

Items 119 and 122-124 remove all provisions relating to Mature Age Allowance and Mature Age Partner Allowance, which are closed to new recipients and have no ongoing recipients.

Veterans' Entitlements Act

Item 125 removes provisions relating to Mature Age Allowance and Mature Age Partner Allowance, which are closed to new recipients and have no ongoing recipients.

Part 2 - Amendments commencing 1 January 2022

Social Security Act

Items 126-147 remove provisions relating to Mature Age Allowance and Mature Age Partner Allowance, which are closed to new recipients and have no ongoing recipients.

As outlined above, the commencement of these amendments is tied to the commencement of some provisions of the Welfare Reform Act.

Part 3 - Amendments relating to sickness allowance

Social Security Act

Items 148 and 149 remove provisions relating to Mature Age Allowance and Mature Age Partner Allowance, which are closed to new recipients and have no ongoing recipients.

As outlined above, the commencement of these amendments is tied to the commencement of some provisions of the Welfare Reform Act.

Statement of Compatibility with Human Rights

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

SCHEDULES 1 AND 3 - SOCIAL SECURITY AND TECHNICAL AMENDMENTS

These Schedules are 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 Schedules

Schedule 1 amends offence provisions in the Social Security (Administration) Act 1999 so that they also prohibit giving a false or misleading statement or document to Services Australia, not just to a particular officer. The offences will then capture circumstances when the information is not provided to a natural person. This will ensure that, for example, a recklessly false statement a person makes in an online claim that is assessed by an automated process can be a contravention of the offence provisions.

Schedule 3:

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amends the Social Security Act 1991 and the National Disability Insurance Scheme Act 2013 to correct errors and repeal obsolete provisions; and

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makes consequential amendments to other Acts.

Human rights implications

These Schedules engage the following human rights.

Right to freedom of expression:

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Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides for the right of freedom of expression.

Right to an adequate standard of living:

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Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the rights of every person to an adequate standard of living.

Right to social security:

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Article 9 of the ICESCR recognises the right of every person to benefit from social security.

Social security amendments (Schedule 1)

The amendments to the Social Security (Administration) Act limit the right to freedom of expression in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR). The expanded offences will prohibit a person from making a false or misleading statement, or providing a false or misleading statement, to Services Australia, even if the statement or document is not made or given to a particular officer. The very modest limitations imposed on the right to freedom of expression are necessary to ensure that misleading Services Australia, for example to obtain a benefit to which the person is not entitled, is prohibited. The limitations are a proportionate way of doing that, and consistent with article 19(3).

Technical amendments (Schedule 3)

The Social Security Act provides for welfare benefits, which are a major way that Australia implements rights to an adequate standard of living and rights to social security.

The amendments to the Social Security Act make technical amendments (to correct errors and repeal obsolete provisions) which ensure the Act operates as intended. These amendments enhance the right to an adequate standard of living and the right to social security.

The amendment to the National Disability Insurance Scheme Act corrects a punctuation error. It does not affect human rights.

Conclusion

These Schedules are compatible with human rights because the amendments either enhance human rights or do not affect human rights.

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

SCHEDULE 2 - DISCLOSURE FOR THE PURPOSES OF ROYAL COMMISSIONS

Schedule 2 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 Schedule

Schedule 2 requires a person served with a formal notice or summons by a Royal Commission, to produce documents or information, or give evidence, to comply with that requirement, even if it is protected by secrecy provisions in the A New Tax System (Family Assistance) (Administration) Act 1999, the Business Services Wage Assessment Tool Payment Scheme Act 2015, the Disability Services Act 1986, or the Social Security (Administration) Act 1999. This is subject only to any public interest immunity or similar claim.

The Secretary and other officers cannot ordinarily be compelled to produce information protected by the secrecy provisions to a court, tribunal, authority. It is possible for the Secretary (or a delegate) to agree to provide such information, but this cannot be compelled. While the Department of Social Services and Services Australia assist Royal Commissions by responding to notices, it is inappropriate that a Royal Commission, particularly a Royal Commission inquiring into Violence, Abuse, Neglect and Exploitation of People with Disability, to only have access to certain information subject to the agreement of the Secretary or a delegate. In order to avoid delay and increase public confidence in the conduct of a Royal Commission, these amendments will result in any information a Royal Commission formally seeks from the Secretary or an officer being required to be provided to the Royal Commission.

In addition to the limitations on compulsion, the production or disclosure of protected information would generally be subject to the confidentiality provisions of the relevant Act. Protected information is information about a person that is or was held in the records of the Department of Social Services or Services Australia. This information may be personal to people obtaining benefits or services from the Department of Social Services or Services Australia, or other people (for example family members), and generally may only be recorded, used or disclosed in accordance with Division 2 of Part 6 of the A New Tax System (Family Assistance) (Administration) Act, Division 3 of Part 5 of the Business Services Wage Assessment Tool Payment Scheme Act, Division 3 of Part III of the Disability Services Act, or Division 3 of Part 5 of the Social Security (Administration) Act.

The amendments will ensure that in giving such information to a Royal Commission, the Secretary and officers will not breach the confidentiality provisions of the relevant Act. Once disclosed to a Royal Commission, the Royal Commission's use and disclosure of the information for the purposes of undertaking its inquiry under the Royal Commissions Act 1902 will not breach the confidentiality provisions of the relevant Act. The Royal Commission will determine its own processes for handling information that is personal and sensitive. However, where it needs to use this information to effectively conduct its inquiry and make recommendations, or to allow others to consider contraventions of laws, it will be able to do so.

Human rights implications

Schedule 2 to this Bill engages the following rights under international human rights law:

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the rights of people with disabilities, especially Article 16 of the Convention on the Rights of Persons with Disabilities ( CRPD );

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the right to privacy in Article 17 of the International Covenant on Civil and Political Rights ( ICCPR ).

Rights of people with disability - Article 16 of the CRPD

Article 16 of the CRPD requires that States Parties take measures to protect persons with disabilities from all forms of exploitation, violence and abuse.

Schedule 2 to this Bill has been developed to ensure the credibility and effectiveness of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission).

The Disability Royal Commission is required to inquire into what governments, institutions and the community should do to prevent, and better protect, people with disability from experiencing violence, abuse, neglect and exploitation, having regard to the extent of violence, abuse, neglect and exploitation experienced by people with disability in all settings and contexts.

In doing so, the Disability Royal Commission is required to consider "the need to establish mechanisms to facilitate the timely communication of information, or the furnishing of evidence, documents or things, in accordance with section 6P of the Royal Commissions Act 1902 or any other relevant law".

By ensuring that the Disability Royal Commission has clear legislated power to compel the Department of Social Services and Services Australia to produce or give evidence, Schedule 2 to this Bill supports the effective functioning of the Disability Royal Commission in taking measures to protect persons with disabilities from all forms of exploitation, violence and abuse.

Right to privacy - Article 17 of the ICCPR

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. The right to privacy includes respect for informational privacy, including in respect of storing, using and sharing private information and the right to control the dissemination of private information. For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and necessity in the circumstances.

Schedule 2 to this Bill limits the existing privacy provisions of the relevant Acts by compelling protected information, including information about a person, to be provided to the Disability Royal Commission.

Schedule 2 to this Bill is a permissible limitation of Article 17 of the ICCPR because it meets the following test:

a)

Legitimate objective: As outlined above, the purpose of Schedule 2 to this Bill is to support the Disability Royal Commission and in doing so, promote the rights of People with Disability, in particular Article 16 of the CRPD.

b)

Rational connection: By facilitating the provision of information to the Disability Royal Commission, Schedule 2 to this Bill will help to ensure that the Disability Royal Commission has uncontested access to the information held by the Department of Social Services and Services Australia. This will ensure that the Disability Royal Commission can pursue matters, make decisions and prepare recommendations based on a correct and complete understanding of the facts available.

c)

Reasonable, necessary and proportionate: Although Schedule 2 limits Article 17 of the ICCPR, it does so only in relation to formal notices issued by Royal Commissions. In carrying out its functions, the Disability Royal Commission is subject to the Royal Commissions Act, including subsection 6D(3), which gives a Royal Commission the power to direct that any evidence, document, or information shall not be published, or shall be published in such manner as the Royal Commission specifies. As such, the Royal Commission is able to make an equivalent determination to the Department of Social Services or Services Australia that particular protected information should not be published, or should be published with redactions. Schedule 2 to the Bill is reasonable and proportionate because the information which will be disclosed to the Royal Commission will be protected by a discretionary power similar to the power which is being limited.

In addition, any person compelled by a Royal Commission to produce documents or give evidence may decline to provide that document or evidence on the basis they have a reasonable excuse (such as legal professional privilege or public interest immunity). This ensures that information held by the Department of Social Services or Services Australia is in the same position as information held by any other agency served with a requirement by a Royal Commission. This ensures the limitation of Article 17 is proportionate.

During the consultation on the Terms of Reference for the Disability Royal Commission, clear and consistent feedback was that the Royal Commission should consider 'all settings and contexts'. There is a clear expectation that the Royal Commission should have the legislative power to compel the Department of Social Services and Services Australia to provide information. This further underscores that Schedule 2 to the Bill is reasonable and necessary.

Conclusion

Schedule 2 to the Bill advances the protection of the rights of people with disability in Australia consistent with the CRPD by supporting the Disability Royal Commission to carry out the functions outlined in its Letters Patent. In particular, the Disability Royal Commission will work to expose and prevent violence, abuse, neglect and abuse in the disability sector.

To the extent Schedule 2 to the Bill limits the right to privacy under Article 17 of the ICCPR, it is a permissible limitation. It does so only to the extent necessary to support the Disability Royal Commission in its legitimate purpose, or any Royal Commission with a legitimate interest in this information, and with the knowledge that protected information retains the same protections when held by the Disability Royal Commission.