Senate

Revised Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Christian Porter MP)

Schedule 17 - Information management

Summary

Schedule 17 implements part of the 2017-18 Budget measure Department of Human Services - improving service delivery and reducing red tape.

The amendments made by this Schedule amend the information gathering and protection provisions in the family assistance law, Paid Parental Leave Act 2010, social security law and Student Assistance Act 1973. The purposes of the amendments are to:

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allow information or documents obtained about a person under the coercive information gathering provisions in the course of an administrative action by the Department of Human Services, to be used in subsequent investigation and prosecution of criminal offences.

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insert limited abrogation of the privilege against self-incrimination provisions that clarify that information so gathered can be used for investigating and prosecuting criminal offences by other people, therefore streamlining the process for referrals of welfare fraud prosecution.

Background

The purpose of the amendments in Schedule 17 to the Bill is to align the coercive information gathering provisions in the Family Assistance Administration Act, Paid Parental Leave Act 2010 (referred to as the Paid Parental Leave Act), Social Security Administration Act and Student Assistance Act 1973 (referred to as the Student Assistance Act) with current Commonwealth policy and drafting standards for such provisions, and by so doing:

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clarify that information or documents obtained under the coercive information gathering provisions can be used for investigation and prosecution of criminal offences; and

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insert limited abrogation of the privilege against self-incrimination provisions that will inform a person of the consequences of the obligation to respond to a statutory demand for information or documents.

The family assistance law, Paid Parental Leave Ac t, social security law and Student Assistance Act empower the Secretary of the Department administering those laws to seek information about persons who are subject to those laws. In practice, these powers are used by the Department of Human Services and other delegates of the Secretary. The information is obtained for administrative purposes relating to payments under those laws. Therefore, under the social security law, the Department of Human Services may seek information relevant to a person's entitlement to a social security payment, or information to assess a person's qualification, payability or rate of payment, or to detect instances of overpayment or social security fraud.

The information gathering provisions in the family assistance law, Paid Parental Leave Ac t, social security law and Student Assistance Act are very similar, although amendments to the provisions in each body of legislation have resulted in minor differences over time. In addition, the administrative focus of these provisions currently hampers the process of gathering admissible evidence. The provisions do not align with current Commonwealth policy and drafting standards for coercive information-gathering provisions. In particular, it is not clear on the face of the provisions what impact the privilege against self-incrimination has on a person's obligation to provide information, and it is not clear whether information provided in response to a statutory demand can be used for investigation and prosecution of criminal offences.

This Schedule will streamline the process for referrals of welfare fraud prosecution by allowing information about a person obtained by the Department of Human Services for possible the Department of Human Services administrative action to be used in criminal proceedings.

These changes will reduce the red tape and administrative burden on the Department of Human Services, the Australian Federal Police (AFP), the Commonwealth Director of Public Prosecutions (CDPP) and third parties when working on a the Department of Human Services administrative investigation or criminal prosecution. The Department of Human Services will only need to obtain information once in the majority of circumstances and the need for the Department of Human Services to obtain admissible material by search warrants pursuant to section 3E of the Crimes Act 1914, will be significantly reduced. In addition, this will mean that potential criminal prosecution cases can be referred in a more timely manner to the CDPP to determine whether the matter is pursued through the courts for prosecution of offenders. This also provides natural justice for recipients, as they will not have to wait for lengthy periods to know whether prosecution of their matter will be pursued by the CDPP.

The amendments made by Schedule 17 to the Paid Parental Leave Act, social security law, and Student Assistance Act commence on 1 January 2018 if the Act receives the Royal Assent before 1 January 2018. If this Act receives the Royal Assent on or after 1 January 2018, Schedule 17 will commence on the first 1 January or 1 July to occur after the day this Act receives the Royal Assent.

The amendments made by Schedule 17 to the family assistance law commence the later of either immediately after the commencement of Schedule 1 to the Family Assistance Legislation Amendment (Jobs to Families Child Care Package) Act 2017, or immediately after the commencement of the provisions to other Acts in Schedule 17. This delayed commencement is because the Family Assistance Legislation Amendment (Jobs to Families Child Care Package) Act 2017 has already been passed, and will amend some of the same provisions this Schedule amends. Commencement immediately after that Act will avoid conflicting amendments.

Explanation of the changes

Family Assistance Administration Act

Item 1 substitutes references to specific provisions in Division 1 of Part 6 of the Family Assistance Administration Act with a general reference to that Division, to maintain the current rules which prevent an application for review by the AAT of an exercise of information gathering powers by a delegate.

Items 2 and 3 amend section 120. Section 120 empowers the Administrative Appeals Tribunal (AAT) to ask the Secretary to exercise the Secretary's powers under section 154 of the Family Assistance Administration Act to request information or documents from a person relevant to a matter being reviewed by the AAT.

The powers of the Secretary to gather information are being amended to provide that, as a pre-condition to their exercise, the Secretary must reasonably believe that the person asked to provide information or documents is able to give the information or documents (see item 5). As a consequence, subsection 120(1) of the Family Assistance Administration Act is also being amended to provide that the AAT must hold the requisite belief before asking the Secretary to exercise the Secretary's power under section 154.

If the AAT reasonably believes that a person is able to give information or documents requested, the Secretary does not also have to have this belief before exercising the power under section 154. In essence, the AAT is standing in the shoes of the Secretary for this purpose, and the Secretary is merely acting on the AAT's request. This is the effect of new subsection 120(3) inserted by item 3.

Items 4, 17, 18 and 19 relate to amending the provisions regarding the relationship between information gathering powers and Commonwealth, State and Territory information protection laws. Item 4 repeals subsection 153(2). Item 19 re-enacts subsection 153(2) as a new subsection 160(2). Item 18 changes the numbering of the existing section 160 to subsection 160(1).

The effect of these amendments is simply to move subsection 153(2) to a new position in the Family Assistance Administration Act (subsection 160(2)). That subsection deals with the relationship between a statutory demand under Division 1 of Part 6 of the Family Assistance Administration Act and Commonwealth information protection laws. The existing section 160 deals with the relationship between a statutory demand under Division 1 of Part 6 of the Act and State and Territory information protection laws. Since both provisions are closely related, moving subsection 153(2) to section 160 is consistent with the legislative intent of section 160.

Items 5, 6, 7, 8, 10, 11 and 15 introduce the concept of the Secretary reasonably believing that a person is able to give information or documents.

Item 5 inserts new section 153A after section 153. This new section imposes an additional condition the Secretary must fulfil before requiring information, documents or records under a provision of Division 1 of Part 6. Under this new section the Secretary can only require a person to give information or produce a document or record if the Secretary reasonably believes that the person will be able to give the information or produce the document or record. The forming of this belief is not a decision in itself, merely a procedural step in the process of making a decision to issue or not issue a notice requiring information.

Requiring that the Secretary reasonably believe that a person can provide information or documents before requiring that person to provide the information or documents ensures that the Secretary's information gathering powers in Division 1 of Part 6 of the Family Assistance Administration Act are consistent with current Commonwealth policy on such matters: see section 9.1.1 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers under the heading 'Grounds for issuing a notice.'

A number of other amendments in Schedule 17 to the Bill are consequential to the enactment of this new provision. Items 6, 7, 8, 10 and 15 repeal the now-superfluous phrase 'that is in the person's custody or under the person's control.' Item 11 repeals and replaces existing section 156. The purpose of this substitution is to accommodate the new section 153A pre-condition for the exercise of the power in section 156, and remove the element of belief from the provision. There is no change to the substantive operation of the provision.

Items 9 and 16 relate to the production and use of information for investigations.

Item 9 relates to the power to obtain information coercively. This amendment will allow a notice to be issued to gather information to investigate the circumstances where a potential overpayment is being quantified and there is potential for fraud to be identified.

The amendment by item 9 and the new section 159C inserted by item 16 are intended to clarify that information provided by a person in response to request by the Secretary under section 154 of the Family Assistance Administration Act, and Division 1 of Part 6 more broadly, can be used for administrative investigation. This would include where investigation may identify offences against the Act. Any information gathered may subsequently be used in prosecutions of those offences. This has always been the case; nevertheless, in the interests of clarity and transparency in the operation of the Secretary's powers to request information, it makes this express.

Nevertheless, information provided by an individual in response to a request from the Secretary under Division 1 of Part 6 will generally not be able to be used against that individual in criminal proceedings: see new subsection 159B(2) inserted by item 16.

Items 12, 13, and 14 amend section 158 relating to the content of a notice to give information or to produce a document. Section 158 provides that any requirement issued to a person under Division 1 of Part 6 must be by written notice to that person. Paragraph 158(2)(b) sets out the information to be specified in the written notice.

Item 12 inserts new subparagraph 158(2)(b)(ia) to require that the written notice must include a description of the information, document or records to which the requirement relates.

Item 13 inserts a note at the end of subsection 158(2) which provides that the written notice issued under section 158 may describe the information, documents or records by class in accordance with subsection 33(3AB) of the Acts Interpretation Act 1901.

Item 14 repeals and replaces subsection 158(5). Subsection 158(5) provides that a notice given under section 158 must specify a time and place at which the person is to appear. New subsection 158(5) makes the additional provision that if such a notice requires a person to appear before an officer, the notice must also specify that the person may be accompanied by a lawyer.

These amendments make the notice provision generally consistent with current Commonwealth policy on the content of statutory demands for information: see section 9.3.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers under the heading 'Notice must contain relevant details.'

Item 16 inserts new section 159B into the Family Assistance Administration Act. The purpose of this provision is to clarify the effect of the privilege against self-incrimination on a person's obligation to respond to a statutory demand to produce under Division 1 of Part 6 of the Act.

Where legislation seeks to abrogate a right, it must be clear and unambiguous. The purpose of new section 159B is to clearly and unambiguously abrogate the right against self-incrimination. Subsection 159B(1) provides that a person is not excused from giving information, or producing a document or record under Division 1 of Part 6 if the information or production of the document or record may tend to incriminate the person or expose the person to a penalty. In short, the person cannot refuse to provide the information or document on the ground that it may incriminate them.

Well established law dictates a person cannot be compelled to convict themselves from their own words and subsection 159B(2) applies this principle. Subsection 159B(2) provides for what is called 'use/derivative use immunity' for an individual providing information or documents in response to a statutory demand to produce. The subsection sets out that any information given, or document or record produced, by an individual (including any information, document or thing obtained as a direct or indirect consequence of giving the information, or producing the document or record) may not be admitted in evidence against the individual in criminal proceedings, with only limited exceptions. (Legal persons other than individuals, such as bodies corporate, do not generally possess the privilege against self-incrimination, so there is no need to provide them with a use/derivative use immunity).

The rationale for abrogating the privilege against self-incrimination is that the information requested is often essential to maintain the integrity of the family assistance system, for example through fraud prevention and detection, and is rarely if ever used against the person providing it. It is generally limited to information that is relevant to another person's approval or entitlements under the family assistance law. For example, information may be sought from an employee of an approved child care service in relation to matters relevant to child care benefit entitlement of eligible individuals whose children were provided with care by the service, or matters relevant to the continued approval of that child care service.

Nevertheless, even though subsection 159B(1) abrogates the privilege against self-incrimination, subsection 159B(2) ensures that only limited criminal consequences flow from the person's inability to refuse to provide the information.

The use/derivative use immunity in subsection 159B(2) is subject to certain exceptions, listed in paragraphs (d), (e), (f) and (g). Essentially, information or documents given by an individual are admissible in criminal proceedings against that individual that relate to the falsity of the information. That is, if an individual provides false information in response to a statutory notice to produce under Division 1 of Part 6 of the Family Assistance Administration Act, that false information can be admitted in criminal proceedings against the individual for provision of false information.

New section 159B ensures that the Secretary is able to obtain information to ensure the integrity of the family assistance scheme without people being fearful of being criminally prosecuted as a result of compliance with a notice.

Section 159B is consistent with current Commonwealth policy on self-incrimination and use/derivative use immunity provisions: see section 9.5 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement and current drafting standards for such provisions.

Item 20 states that the amendments made to section 120 of the Family Assistance Administration Act by Schedule 17 apply in relation to requests from the AAT made on or after the commencement of this item. This item also states that amendments made to Division 1 of Part 6 of the Family Assistance Administration Act apply in relation to requirements made under that Division on or after commencement of this item.

Paid Parental Leave Act

Items 21, 22, 24 and 25 introduce the concept of the Secretary reasonably believing that a person is able to give information or documents.

Item 21 inserts new section 116A before section 117. This new section imposes an additional condition the Secretary must fulfil before requiring information, documents or records under a provision of Subdivision A of Division 2 of Part 4.1. Under this new section the Secretary can only require a person to give information or produce a document or record if the Secretary reasonably believes that the person will be able to give the information or produce the document or record. The forming of this belief is not a decision in itself, merely a procedural step in the process of making a decision to issue or not issue a notice requiring information.

By requiring that the Secretary reasonably believe that a person can provide information or documents before requiring that person to provide the information or documents, this new section ensures that the Secretary's information gathering powers in Subdivision A of Division 2 of Part 4.1 of the Paid Parental Leave Act are consistent with current Commonwealth policy on such matters: see section 9.1.1 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers under the heading 'Grounds for issuing a notice.'

A number of other amendments in Schedule 17 to the Bill are consequential to the enactment of this new provision. Items 22 and 24 repeal the now-superfluous phrase 'that is in the person's custody or under the person's control.' Item 25 repeals and replaces the existing section 119. The purpose of this substitution is to accommodate the new section 116A pre-condition for the exercise of the power in section 119. There is no change to the substantive operation of the provision.

Items 23 and 33 relate to the production and use of information for investigations.

Item 23 relates to the power to obtain information coercively. This amendment will allow a notice to be issued to gather information to investigate the circumstances where a potential overpayment is being quantified and there is potential for fraud to be identified.

The amendment by item 23 and the new section 122B inserted by item 33 are intended to clarify the position that information provided by a person in response to request by the Secretary under section 117 of the Paid Parental Leave Act, and Subdivision A of Division 2 of Part 4.1 more broadly, can be used for administrative investigation. This would include where the investigation may identify offences against the Act. Any information gathered can subsequently be used in prosecutions of those offences. This has always been the case; nevertheless, in the interests of clarity and transparency in the operation of the Secretary's powers to request information, it makes this express.

Nevertheless, information provided by an individual in response to a request from the Secretary under Subdivision A of Division 2 of Part 4.1 will generally not be able to be used against that individual in criminal proceedings or proceedings for a civil penalty order, with only limited exceptions: see new subsection 122A(2) inserted by item 33.

Item 26 27, 28 and 29 amend section 120 relating to the content of a notice to give information or to produce a document. Section 120 provides that any requirement issued to a person under Subdivision A of Division 2 of Part 4.1 must be by written notice to that person. Paragraph 120(2)(b) sets out the information to be specified in the written notice.

Item 26 inserts new subparagraph 120(2)(b)(ia) to require that the written notice must include a description of the information, document or records to which the requirement relates.

Item 27 inserts a note at the end of subsection 118(2) which provides that the written notice issued under section 118 may describe the information, documents or records by class in accordance with subsection 33(3AB) of the Acts Interpretation Act 1901.

Item 28 repeals and replaces subsection 120(3). Subsection 120(3) currently provides that a the period specified in subparagraph 129(2)(b)(ii) for a person to provide information after receiving a notice must not end earlier than 14 days after the day a notice under section 120 was given. New subsection 120(3) makes the additional provision that the minimum period of 14 days may be shortened if the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of effective administration of the Paid Parental Leave Act, to specify a shorter period.

The Secretary may be satisfied that a shorter period is reasonable, for example, where urgent provision of information or documents is required to limit debts, or where a reasonable belief is held that the information or documents may become unavailable due to destruction by deliberate act or routine culling. If a person is unable to produce the requested information within the specified timeframe, this may constitute a reasonable excuse for not complying with the notice, which will avoid any penalty for the failure to respond under existing subsection 122(2).

Item 29 repeals and replaces subsection 120(6) and adds a new subsection 120(7). Subsection 120(6) provides that if a notice given under section 120 requires a person to appear before an officer, then that notice must specify a time and place at which the person is to appear and that the time must be at least 14 days after the notice is given. New subsection 120(6) makes the additional provision that if such a notice requires a person to appear before an officer, the notice must also specify that the person may be accompanied by a lawyer. New subsection 120(7) makes the additional provision that the minimum period of 14 days may be shortened if the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of effective administration of the Paid Parental Leave Act, to specify a shorter period.

The Secretary may be satisfied that a shorter period is reasonable to ensure a person appears before an officer, for example, where reasonable grounds exist to indicate that the person is planning to leave the jurisdiction of the Australian courts prior to the end of that 14 day period.

These amendments make the notice provision generally consistent with current Commonwealth policy on the content of statutory demands for information: see section 9.3.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers under the heading 'Notice must contain relevant details'.

Items 30, 31 and 32 amend the provisions regarding the relationship between information gathering powers and Commonwealth, State and Territory information protection laws. This is to align the Paid Parental Leave Act with the Family Assistance Administration Act, Social Security Administration Act and the Student Assistance Act. Item 32 states that a person is not required to give information or produce a document if in doing do a person would contravene a law of the Commonwealth (other than a law of a Territory).

Item 33 inserts new section 122A into the Paid Parental Leave Act. The purpose of this provision is to clarify the effect of the privilege against self-incrimination on a person's obligation to respond to a statutory demand to produce under Subdivision A of Division 2 of Part 4.1 of the Act.

Where legislation seeks to abrogate a right, it must be clear and unambiguous. The purpose of new section 122A is to clearly and unambiguously abrogate the right against self-incrimination. Subsection 122A(1) provides that a person is not excused from giving information, or producing a document or record under Subdivision A of Division 2 of Part 4.1 of the Act if the information or production of the document or record may tend to incriminate the person or expose the person to a penalty. In short, the person cannot refuse to provide the information or document on the ground that it may incriminate them.

Well established law dictates a person cannot be compelled to convict themselves from their own words and subsection 122A(2) applies this principle. Subsection 122A(2) provides for what is called 'use/derivative use immunity' for an individual providing information or documents in response to a statutory demand to produce. The subsection sets out that any information given, or document or record produced, by an individual (including any information, document or thing obtained as a direct or indirect consequence of giving the information, or producing the document or record) may not be admitted in evidence against the individual in criminal proceedings. (Legal persons other than individuals, such as bodies corporate, do not generally possess the privilege against self-incrimination, so there is no need to provide them with a use/derivative use immunity).

The rationale for abrogating the privilege against self-incrimination is that the information requested is often essential to maintain the integrity of the Paid Parental Leave Act, for example through fraud prevention and detection, and is rarely if ever used against the person providing the information. It is generally limited to information that is relevant to another person's approval or entitlements under the Paid Parental Leave Act. For example, a paid parental leave claimant's employer may be asked to verify the person's working history with that employer.

Nevertheless, even though subsection 122A(1) abrogates the privilege against self-incrimination, subsection 122A(2) ensures that only limited criminal consequences flow from the person's inability to refuse to provide the information.

The use/derivative use immunity in subsection 122A(2) is subject to certain exceptions, listed in paragraphs (d), (e) and (f). Essentially, information or documents given by an individual are admissible in criminal proceedings against that individual that relate to the falsity of the information. That is, if an individual provides false information in response to a statutory notice to produce under Subdivision A of Division 2 of Part 4.1 of the Paid Parental Leave Act, that false information can be admitted in criminal proceedings against the individual for provision of false information.

The new section 122A ensures that the Secretary is able to obtain information to ensure the integrity of the Paid Parental Leave Act without people being fearful of being criminally prosecuted as a result of compliance with a notice.

Section 122A is consistent with current Commonwealth policy on self-incrimination and use/derivative use immunity provisions: see section 9.5 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement and current drafting standards for such provisions.

Item 34 substitutes references to specific provisions in Subdivision A of Division 2 of Part 4.1 of the Paid Parental Leave Act with a general reference to that Subdivision, to maintain the current rules which prevent an application for review by the AAT of an exercise of information gathering powers by a delegate.

Items 35 and 36 amend section 231. Section 231 empowers the AAT to ask the Secretary to exercise the Secretary's powers under section 117 of the Paid Parental Leave Act to request information or documents from a person relevant to a matter being reviewed by the AAT.

The powers of the Secretary to gather information are being amended to provide that, as a pre-condition to their exercise, the Secretary reasonably believes that the person asked to provide information or documents is able to give the information or documents (see item 21). As a consequence, subsection 231(1) of the Paid Parental Leave Act is also being amended to provide that the AAT must hold the requisite belief before asking the Secretary to exercise the Secretary's power under section 117.

If the AAT reasonably believes that a person is able to give information or documents requested, the Secretary does not also have to have this belief before exercising the power under section 117. In essence, the AAT is standing in the shoes of the Secretary for this purpose, and the Secretary is merely acting on the AAT's request. This is the effect of the new subsection 231(3) inserted by item 36.

Item 37 states that the amendments made to Subdivision A of Division 2 of Part 4.1 of the Paid Parental Leave Act by Schedule 17 apply in relation to requirements made under that subdivision on or after commencement of this item. This item also states that amendments made to section 231 of the Paid Parental Leave Act apply in relation to requests from the AAT made on or after the commencement of this item.

Social Security Administration Act

Item 38 substitutes references to specific provisions in Division 1 of Part 5 of the Social Security Administration Act with a general reference to that Division, to maintain the current rules which prevent an application for review by the AAT of an exercise of information gathering powers by a delegate.

Items 39 and 40 amend section 166. Section 166 of the Social Security Administration Act empowers the AAT to ask the Secretary to exercise the Secretary's powers under section 192 to request information or documents from a person relevant to a matter being reviewed by the AAT.

The powers of the Secretary to gather information are being amended to provide that, as a pre-condition to their exercise, the Secretary reasonably believes that the person asked to provide information or documents is able to give the information or documents (see item 43). As a consequence, subsection 166(1) of the Social Security Administration Act is also being amended to provide that the AAT must hold the requisite belief before asking the Secretary to exercise the Secretary's power under section 192.

If the AAT reasonably believes that a person is able to give information or documents requested, the Secretary does not also have to have this belief before exercising the power under section 192. In essence, the AAT is standing in the shoes of the Secretary for this purpose, and the Secretary is merely acting on the AAT's request. This is the effect of the new subsection 166(3) inserted by item 40.

Items 41, 42, 55, 56 and 57 relate to amending the provisions regarding the relationship between information gathering powers and Commonwealth, State and Territory information protection laws. Item 42 repeals subsection 191(2) of the Social Security Administration Act, as a result of which item 41 removes the subsection number from the current subsection 191(1). Item 57 re-enacts subsection 191(2) as a new subsection 198(2). Item 56 changes the numbering of the existing section 198 to subsection 198(1).

The effect of these amendments is simply to move subsection 191(2) to a new position in the Social Security Administration Act. That subsection deals with the relationship between a statutory demand under Division 1 of Part 5 of the Social Security Administration Act and Commonwealth information protection laws, and the existing section 198 deals with the relationship between a statutory demand under Division 1 of Part 5 of the Act and State and Territory information protection laws. Since both provisions are closely related, the moving of subsection 191(2) to section 198 is consistent with the legislative intent of section 198.

Items 43, 44, 48 and 49 introduce the concept of the Secretary reasonably believing that a person is able to give information or documents.

Item 43 inserts new section 191A after section 191 of the Social Security Administration Act. This new section imposes an additional condition the Secretary must fulfil before requiring information, documents or records under a provision of Division 1 of Part 5. Under this new section the Secretary can only require a person to give information or produce a document if the Secretary reasonably believes that the person will be able to give the information or produce the document. The forming of this belief is not a decision in itself, merely a procedural step in the process of making a decision to issue or not issue a notice requiring information.

By requiring that the Secretary reasonably believe that a person can provide information or documents before requiring that person to provide the information or documents, this new section ensures that the Secretary's information gathering powers in Division 1 of Part 5 of the Social Security Administration Act are consistent with current Commonwealth policy on such matters: see section 9.1.1 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers under the heading 'Grounds for issuing a notice.'

A number of other amendments in Schedule 17 to the Bill are consequential to the enactment of this new provision. Items 44 and 48 repeal the now-superfluous phrase 'that is in the person's custody or under the person's control.' Item 49 repeals and replaces the existing section 194. The purpose of this substitution is to accommodate the new section 191A pre-condition for the exercise of the power in section 194. There is no change to the substantive operation of the provision.

Items 45 and 46 relate to obtaining information relevant to a person's qualification for a social security payment. Item 45 amends paragraph 192(a). Currently paragraph 192(a) provides that the Secretary may exercise the power to obtain information under section 192 if the information to be given, or the document to be produced, may be relevant to the question whether a person who has made a claim for a social security payment is or was qualified for the payment.

The amendment made by item 45 will enable the Secretary to request information relevant to whether a person who has claimed a social security payment is qualified for any social security payment. This will assist the Secretary in determining whether a person who has claimed a payment has claimed the correct payment, and whether a person who is already on a social security payment may be eligible for a transfer to another social security payment that is more appropriate to their circumstances.

Item 46 adds a new paragraph (aa) to section 192. The purpose of this amendment is to enable the Secretary to seek information that may be relevant to a person's qualification for a payment that they are not required to claim (for example, claims are not required for some one-off payments and a number of allowances: see Subdivision B of Division 1 of Part 3 of the Social Security Administration Act). Typically a person has had to make a claim for a payment before Centrelink could make a payment to that person; however, recent one-off payments are payable in the absence of claims, and the Secretary's power to request information under existing paragraph 192(a) has been limited to circumstances where a person has made a claim for the payment.

Items 47 and 54 relate to the production and use of information for investigations.

Item 47 relates to the power to obtain information coercively. This amendment will allow a notice to be issued to gather information to investigate the circumstances where a potential overpayment is being quantified and there is potential for fraud to be identified.

The amendment made by item 47 and new section 197B inserted by item 54 are intended to clarify the position that information provided by a person in response to a request by the Secretary under section 192 of the Social Security Administration Act, and Division 1 of Part 5 more broadly, can be used for administrative investigation. This would include where the investigation may identify offences against the Act. Any information gathered can subsequently be used in prosecutions of those offences. This has always been the case; nevertheless, in the interests of clarity and transparency in the operation of the Secretary's powers to request information, it makes this express.

Nevertheless, information provided by an individual in response to a request from the Secretary under Division 1 of Part 5 will not be able to be used against that individual in criminal proceedings, with only limited exceptions: see new subsection 197A(2) inserted by item 54.

Items 50, 51, 52 and 53 amend sections relating to the content of a notice to give information or to produce a document. Section 196 provides that any requirement issued to a person under Division 1 of Part 5 must be by written notice to that person. Paragraph 196(2)(b) sets out the information to be specified in the written notice.

Item 50 inserts new subparagraph 196(2)(b)(ia) to require that the written notice must include a description of the information or document to which the requirement relates.

Item 51 inserts a note at the end of subsection 196(2) which provides that the written notice issued under section 196 may describe the information, documents or records by class in accordance subsection 33(3AB) of the Acts Interpretation Act 1901.

Item 52 repeals and replaces subsection 196(3). Subsection 196(3) currently provides that a the period specified in subparagraph 196(2)(b)(ii) for a person to provide information after receiving a notice must not end earlier than 14 days after the day a notice under section 196 was given. New subsection 196(3) makes the additional provision that the minimum period of 14 days may be shortened if the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of effective administration of the social security law, to specify a shorter period.

The Secretary may be satisfied that a shorter period may be imposed, for example, where urgent provision of information or documents is required to limit debts, or where a reasonable belief is held that the information or documents may become unavailable due to destruction by deliberate act or routine culling. If a person is unable to produce the requested information within the specified timeframe, this may constitute a reasonable excuse for not complying with the notice, which will avoid any penalty for the failure to respond under existing subsection 197(3).

Item 53 repeals and replaces subsection 196(5) and adds a new subsection 196(6). Subsection 196(5) provides that if a notice given under section 196 requires a person to appear before an officer, then that notice must specify a time and place at which the person is to appear and that the time must be at least 14 days after the notice is given. New subsection 196(5) makes the additional provision that if such a notice requires a person to appear before an officer, the notice must also specify that the person may be accompanied by a lawyer.

New subsection 196(6) moves the requirement in subsection 196(5) for a notice to specify a time and place for a person to appear before an officer at least 14 days after a notice is given to its own subsection. New subsection 196(6) makes the additional provision that the minimum period of 14 days may be shortened if the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of effective administration of the social security law, to specify a shorter period.

The Secretary may be satisfied that a shorter period may be imposed, for example, to ensure a person appears before an officer where reasonable grounds exist to indicate that the person is planning to leave the jurisdiction of the Australian courts prior to that 14 day period.

These amendments make the notice provision generally consistent with current Commonwealth policy on the content of statutory demands for information: see section 9.3.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers under the heading 'Notice must contain relevant details'.

Item 54 inserts new section 197A into the Social Security Administration Act. The purpose of this provision is to clarify the effect of the privilege against self-incrimination on a person's obligation to respond to a statutory demand to produce under Division 1 of Part 5 of the Act.

Where legislation seeks to abrogate a right, it must be clear and unambiguous. The purpose of new section 197A is to clearly and unambiguously abrogate the right against self-incrimination. Subsection 197A(1) provides that a person is not excused from giving information, or producing a document or record under Division 1 of Part 5 if the information or production of the document or record may tend to incriminate the person or expose the person to a penalty. In short, the person cannot refuse to provide the information or document on the ground that it may incriminate them.

Well established law dictates a person cannot be compelled to convict themselves from their own words and subsection 197A(2) applies this principle. Subsection 197A(2) provides for what is called 'use/derivative use immunity' for an individual providing information or documents in response to a statutory demand to produce. The subsection sets out that any information given, or document or record produced, by an individual (including any information, document or thing obtained as a direct or indirect consequence of giving the information, or producing the document or record) may not be admitted in evidence against the individual in criminal proceedings, with only limited exceptions. (Legal persons other than individuals, such as bodies corporate, do not generally possess the privilege against self-incrimination, so there is no need to provide them with a use/derivative use immunity).

The rationale for abrogating the privilege against self-incrimination is that the information requested is often essential to maintain the integrity of the social security system, for example through fraud prevention and detection, and is rarely if ever used against the person providing it. Generally only information that is relevant to another person's social security payment under the social security law is sought from persons. For example, information may be sought from an employer about cash-in-hand income received by a social security recipient, or from a financial institution about a social security recipient's financial assets, incomings and outgoings.

Nevertheless, even though subsection 197A(1) abrogates the privilege against self-incrimination, subsection 197A(2) ensures that only limited criminal consequences flow from the person's inability to refuse to provide the information.

The use/derivative use immunity in subsection 197A(2) is subject to certain exceptions, listed in paragraphs (d), (e) (f) and (g). Essentially, information or documents given by an individual are admissible in criminal proceedings against that individual that relate to the falsity of the information. That is, if an individual provides false information in response to a statutory notice to produce under Division 1 of Part 5 of the Social Security Administration Act, that false information can be admitted in criminal proceedings against the individual for provision of false information.

The new section 197A ensures that the Secretary is able to obtain information to ensure the integrity of the social security scheme without people being fearful of being criminally prosecuted as a result of compliance with a notice.

Section 197A is consistent with current Commonwealth policy on self-incrimination and use/derivative use immunity provisions - see section 9.5 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement - and current drafting standards for such provisions.

Item 58 states that the amendments made to section 166 of the Social Security Administration Act by Schedule 17 apply in relation to requests from the AAT made on or after the commencement of this item. This item also states that amendments made to Division 1 of Part 5 of the Social Security Administration Act apply in relation to requirements made under that division on or after commencement of this item.

Student Assistance Act

Item 59 substitutes reference to specific provisions in Division 2 of Part 10 of the Student Assistance Act with a general reference to that Division, to prevent an application for review by the AAT of an exercise of information gathering powers by a delegate.

Items 60 and 61 amend section 342 of the Student Assistance Act to delete references to section 349 of that Act. Section 349 was repealed on 1 July 1998 by item 119 of Schedule 11 to the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998.

Items 62, 75, 76 and 77 relate to amending the provisions regarding the relationship between information gathering powers and Commonwealth, State and Territory information protection laws. Item 62 repeals subsection 342(3) of the Student Assistance Act. Item 77 re-enacts subsection 342(3) as a new subsection 348(2). Item 76 changes the numbering of the existing section 348 to subsection 348(1).

The effect of these amendments is simply to move subsection 342(3) to a new position in the Student Assistance Act. That subsection deals with the relationship between a statutory demand under Division 2 of Part 10 of the Student Assistance Act and Commonwealth information protection laws, and the existing section 348 deals with the relationship between a statutory demand under Division 2 of Part 10 of the Act and State and Territory information protection laws. Since both provisions are closely related, the moving of subsection 342(3) to section 348 is consistent with the legislative intent of section 348.

Items 63, 64, 68 and 70 introduce the concept of the Secretary reasonably believing that a person is able to give information or documents.

Item 63 inserts new section 342A after section 342 of the Student Assistance Act. This new section imposes an additional condition the Secretary must fulfil before requiring information, documents or records under a provision of Division 2 of Part 10. Under this new section the Secretary can only require a person to give information or produce a document if the Secretary reasonably believes that the person will be able to give the information or produce the document. The forming of this belief is not a decision in itself, merely a procedural step in the process of making a decision to issue or not issue a notice requiring information.

By requiring that the Secretary reasonably believe that a person can provide information or documents before requiring that person to provide the information or documents, this new section ensures that the Secretary's information gathering powers in Division 2 of Part 10 of the Student Assistance Act are consistent with current Commonwealth policy on such matters: see section 9.1.1 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers under the heading 'Grounds for issuing a notice.'

A number of other amendments in Schedule 17 to the Bill are consequential to the enactment of this new provision. Items 64 and 68 repeal the now-superfluous phrase 'that is in the person's custody or under the person's control.' Item 70 repeals and replaces the existing section 345. The purpose of this substitution is to accommodate the new section 342A pre-condition for the exercise of the power in section 345. To do this it was simpler to substitute the provision rather than endeavour to amend it. There is no change to the substantive operation of the provision.

Item 65 amends paragraph 343(1)(a). Currently, paragraph 343(1)(a) provides that the Secretary may exercise the power to obtain information under section 343 if the information to be given, or the document to be produced, may be relevant to the question whether a person who has made a claim for a student assistance benefit is or was qualified for the payment.

The amendment made by item 65 will enable the Secretary to request information relevant to whether a person who has claimed a student assistance benefit is qualified for any student assistance benefit. This will assist the Secretary in determining whether a person who has claimed a benefit has claimed the correct benefit, and whether a person who is already on a benefit may be eligible for a transfer to another benefit that is more appropriate to their circumstances.

Items 66 and 74 relate to the production and use of information for investigations.

Item 66 relates to the power to obtain information coercively. This amendment will allow a notice to be issued to gather information to investigate the circumstances where a potential overpayment is being quantified and there is potential for fraud to be identified.

The amendment made by item 66 and the new section 347B inserted by item 74 are intended to clarify the position that information provided by a person in response to a request by the Secretary under section 343 of the Student Assistance Act, and Division 2 of Part 10 more broadly, can be used for administrative investigation. This would include where the investigation may identify offences against the Act. Any information gathered can subsequently be used in prosecutions of those offences. This has always been the case; nevertheless, in the interests of clarity and transparency in the operation of the Secretary's powers to request information, it makes this express.

Nevertheless, information provided by an individual in response to a request from the Secretary under Division 2 of Part 10 will not be able to be used against that individual in criminal proceedings, with only limited exceptions: see new subsection 347A(2) inserted by item 74.

Items 67 and 69 repeal notes to subsection 343(1) and 344(1). These notes identify that the term 'person' as used in those subsections includes bodies corporate. This is well understood and the notes are no longer necessary.

Items 71, 72 and 73 amend sections relating to the content of a notice to give information or to produce a document. Section 347 provides that any requirement issued to a person under Division 2 of Part 10 must be by written notice to that person. Subsection 347(2) sets out the information to be specified in the written notice.

Item 71 substitutes a new subsection (2) that updates the language of the subsection and adds a new requirement that the notice must specify the information or document that must be given or produced (new paragraph (2)(a)). A note is also added to the end of the subsection which provides that the written notice issued under section 347 may describe the information, documents or records by class in accordance subsection 33(3AB) of the Acts Interpretation Act 1901. These amendments are consistent with the amendments to paragraph 158(2)(b) of the Family Assistance Administration Act (see items 12 and 13), paragraph 120(2)(b) of the Paid Parental Leave Act (see items 26 and 27), and paragraph 196(2)(b) of the Social Security Administration Act (see items 50 and 51).

Item 72 repeals subsection 347(4). Subsection 347(4) currently provides that the period specified in paragraph 347(2)(b) for a person to provide information after receiving a notice must not end earlier than 14 days after the day a notice under section 347 was given. New subsection 347(4) makes the additional provision that the minimum period of 14 days may be shortened if the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of effective administration of the Student Assistance Act, to specify a shorter period.

The Secretary may be satisfied that a shorter period may be imposed, for example, where urgent provision of information or documents is required to limit debts, or where a reasonable belief is held that the information or documents may become unavailable due to destruction by deliberate act or routine culling. If a person is unable to produce the requested information within the specified timeframe, this may constitute a reasonable excuse for not complying with the notice, which will avoid any penalty for the failure to respond under existing subsection 347(11).

Item 73 repeals and replaces subsection 347(6) and adds a new subsection 347(7). Subsection 347(6) provides that if a notice given under section 347 requires a person to appear before an officer, then that notice must specify a time and place at which the person is to appear and that the time must be at least 14 days after the notice is given. New subsection 347(6) makes the additional provision that if such a notice requires a person to appear before an officer, the notice must also specify that the person may be accompanied by a lawyer.

New subsection 347(7) moves the requirement in subsection 347(6) for a notice to specify a time and place for a person to appear before an officer at least 14 days after a notice is given to its own subsection. New subsection 347(7) makes the additional provision that the minimum period of 14 days may be shortened if the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of effective administration of the Student Assistance Act, to specify a shorter period.

The Secretary may be satisfied that a shorter period may be imposed, for example, to ensure a person appears before an officer where reasonable grounds exist to indicate that the person is planning to leave the jurisdiction of the Australian courts prior to that 14 day period.

These amendments make the notice provision generally consistent with current Commonwealth policy on the content of statutory demands for information: see section 9.3.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers under the heading 'Notice must contain relevant details.'

Item 74 inserts new section 347A into the Student Assistance Act. The purpose of this provision is to clarify the effect of the privilege against self-incrimination on a person's obligation to respond to a statutory demand to produce under Division 2 of Part 10 of the Act.

Where legislation seeks to abrogate a right, it must be clear and unambiguous. The purpose of new section 159B is to clearly and unambiguously abrogate the right of against self-incrimination. Subsection 347A(1) provides that a person is not excused from giving information, or producing a document or record under Division 2 of Part 10 if the information or production of the document or record may tend to incriminate the person or expose the person to a penalty. In short, the person cannot refuse to provide the information or document on the ground that it may incriminate them.

Well established law dictates a person cannot be compelled to convict themselves from their own words and subsection 347A(2) applies this principle. Subsection 347A(2) provides for what is called 'use/derivative use immunity' for an individual providing information or documents in response to a statutory demand to produce. The subsection sets out that any information given, or document or record produced, by an individual (including any information, document or thing obtained as a direct or indirect consequence of giving the information, or producing the document or record) may not be admitted in evidence against the individual in criminal proceedings (with only limited exceptions). (Legal persons other than individuals, such as bodies corporate, do not generally possess the privilege against self-incrimination, so there is no need to provide them with a use/derivative use immunity).

The rationale for abrogating the privilege against self-incrimination is that the information requested is often essential to maintain the integrity of the student assistance system, for example through fraud prevention and detection, and is rarely if ever used against the person providing it. Generally only information that is relevant to another person's student assistance benefit under the Student Assistance Act is sought from persons. For example, information may be sought from an employer about cash-in-hand income received by a student assistance recipient, or from a financial institution about a student assistance recipient's financial assets, incomings and outgoings.

Nevertheless, even though subsection 347A(1) abrogates the privilege against self-incrimination, subsection 347A(2) ensures that only limited criminal consequences flow from the person's inability to refuse to provide the information.

The use/derivative use immunity in subsection 347A(2) is subject to certain exceptions, listed in paragraphs (d), (e) and (f). Essentially, information or documents given by an individual are admissible in criminal proceedings against that individual that relate to the falsity of the information. That is, if an individual provides false information in response to a statutory notice to produce under Division 2 of Part 10 of the Student Assistance Act, that false information can be admitted in criminal proceedings against the individual for provision of false information.

The new section 347A ensures that the Secretary is able to obtain information to ensure the integrity of the student assistance scheme without people being fearful of being criminally prosecuted as a result of compliance with a notice.

These amendments are consistent with the addition of new section 159B of the Family Assistance Administration Act (see item 16), section 122A of the Paid Parental Leave Act (see item 33), and section 197A of the Social Security Administration Act (see item 54), and its inclusion is intended to make the operation of the information gathering provisions in all four pieces of legislation consistent.

Section 347A is consistent with current Commonwealth policy on self-incrimination and use/derivative use immunity provisions - see section 9.5 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement - and current drafting standards for such provisions.

Item 78 states that the amendments made to Division 2 of Part 10 of the Student Assistance Act apply in relation to requirements made under that division on or after commencement of this item.