Posted 16/06/2020 by Philip Hamilton
The agency responsible for delivering most of the Commonwealth Government’s social and health related services has been through some changes over the past year. The Department of Human Services (DHS) was renamed Services Australia in May 2019. It was abolished and replaced when an Executive Agency, also named Services Australia, was established on 1 February 2020. More changes are proposed in the two schedules of the Services Australia Governance Amendment Bill 2020 (the Bill) introduced into the House of Representatives by the Minister for Government Services on 13 May 2020.
Schedule 1 comprises amendments consequential to the name change. For example, ‘Services Australia’ will be added to the list of names protected against unauthorised use, and seventeen Acts will be amended to reflect the changes of name and organisation (one amendment appears to address an unintended consequence of the name change).
In amendments not necessitated by the name change, Schedule 2 will amend three Acts to require the CEO Services Australia (CEO SA) to be simultaneously the Chief Executive Centrelink (CEC), the Chief Executive Medicare (CEM) and the Child Support Registrar (CSR). The three roles have been performed by different Senior Executive Service (SES) positions in DHS/Services Australia since Centrelink and Medicare were merged into DHS in 2011.
SCHEDULE 1
Schedule 1’s commencement date of 1 February 2020 represents a significant period of backdating. However, this is unremarkable as these predominantly technical amendments do not represent policy changes and will not have adverse consequences for any individual.
Provisions consequential to the changes of name and organisation
Six amendments in Schedule 1 aim to ensure that information about a person obtained from the records of DHS, or Services Australia when it was a department, is protected by the secrecy provisions in each amended Act. In addition Schedule 1 will amend seventeen Acts to reflect Services Australia’s change of name and organisation. The amendments give legislative backing to changes already in effect through the Acts Interpretation Amendment (2020 Measures No. 1) Substituted Reference Order 2020, which amended the Acts Interpretation Substituted Reference Order 2017 (AISRO) to substitute references to Services Australia and its CEO in place of DHS and its Secretary. The legislative amendments proposed in Schedule 1 will improve clarity by removing the need for the AISRO.
Addressing an apparent unintended consequence
The Explanatory Memorandum (EM) to the Bill explains that item 32 is needed due to the application of the Administrative Arrangements Orders (AAOs). However, the need for the change may have arisen from an unintended consequence of a substitution effected by the amendment of the AISRO.
In successive AAOs the Human Services (Medicare) Act 1973 (the Medicare Act) has been assigned to the Social Services/Human Services portfolio, with the exception of section 3 (definition of ‘Departmental employee’), which has been assigned to the Health portfolio (since September 2016 through to the current AAO). This exception enables Department of Health employees to perform duties under, for example, section 129AAD of the Health Insurance Act 1973.
In an apparent unintended consequence, the AISRO redefined ‘Departmental employee’ as an employee of ‘Services Australia’ only, without providing for Health employees. Item 32 addresses this by proposing two categories of ‘Departmental employee’ in section 3 of the Medicare Act:
Departmental employee means:
- unless paragraph (b) applies—an APS employee in Services Australia; or
- if a Minister other than a Minister administering the Human Services (Centrelink) Act 1997 administers this provision in relation to a matter—in relation to the matter, an APS employee in the Department that:
- is administered by that other Minister; and
- deals with the matter.
The EM explains that ‘paragraph (b) of the new definition is necessary so that employees of the Department of Health can continue to perform health provider compliance functions’.
Protection of ‘Services Australia’ against unauthorised use
Items 29–31 of Schedule 1 would amend section 38 of the Human Services (Centrelink) Act 1997 to add ‘Services Australia’ to the list of names protected against unauthorised use. As ‘services’ and ‘Australia’ are commonly used terms, the Bill says the protection is relevant:
only if the use or application is, or is likely to be mistaken to be, in connection with the operations of Services Australia as an executive agency or the provision of services by the Commonwealth. … The prosecution bears the legal burden in relation to the matter …
The EM states that ‘the modest limitations it imposes on the right to freedom of expression are necessary and proportionate to protect social security recipients from being mislead [sic] to their detriment’.
SCHEDULE 2
Schedule 2 will commence the day after Royal Assent.
CEO of Services Australia to also perform three statutory roles
When Centrelink and Medicare were integrated into DHS almost ten years ago, the Revised Explanatory Memorandum to the implementing Bill (REM 2010) noted ‘the intention … is to prevent one person holding more than one of the positions of Chief Executive Medicare, Chief Executive Centrelink and Child Support Registrar at the same time’. As a result, since 2011 the three roles have been performed by different Senior Executive Service (SES) positions in DHS/Services Australia. Taking a different approach, Schedule 2 of the current Bill would amend three Acts to require the CEO SA to be simultaneously CEM, CEC and CSR. The Minister’s Second Reading speech contended that ‘having the CEO fill those [three] key statutory offices will sharpen the service delivery focus of Services Australia and simplify lines of accountability’.
Schedule 2 aims to ensure uninterrupted occupancy of the three positions. If the position of CEO SA ceases to exist the Governor-General may appoint a person as CEM, CEC and CSR. In addition, the Secretary of the Department of Social Services (DSS) may appoint a person to act as CEM, CEC and CSR.