Bills Digest No.
3, 2020–21
PDF version [516KB]
David Markham
Law and Bills Digest Section
6
August 2020
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Other provisions
Date introduced: 13
May 2020
House: House of
Representatives
Portfolio: Social
Services
Commencement: Schedules
1 and 2 and Schedule 3 Part 1 commence the day after Royal Assent. The
commencement of Schedule 3 Parts 2 and 3 is reliant on the commencement of
other legislation. Part 2 commences on 1 January 2022 and Part 3 on 20 September 2020
or the day after Royal Assent (of this Bill), if that is later.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at August 2020.
Purpose of
the Bill
The purpose of the Social
Services and Other Legislation Amendment (Omnibus) Bill 2020 (the Bill) is
to amend a number of Acts, primarily relating to social services payments, to
ensure that current legislation recognises that social security payments are
now often assessed through an automated process; to allow a Royal Commission to
compel production of information otherwise protected by certain Social Services
portfolio legislation; and to make minor and technical amendments to social
services legislation, including consequential amendments to other legislation.
Structure of the Bill
The Bill’s amendments are contained in three Schedules:
- Schedule
1 relates to automated assessment of payments
- Schedule
2 contains amendments authorising the production of otherwise protected information
to Royal Commissions and
- Schedule
3 contains technical and other amendments.
Background
Social services legislation generally makes it an offence
for applicants for, or recipients of, social security payments to provide
deceptive information, either deliberately or recklessly, to an officer
applying the social security law.[1]
However, decisions are now frequently made through an automated process.[2]
It is not certain that a court would regard a reference to an officer as
including an automated process. Accordingly, an amendment to the legislation is
to be made to clarify the situation in respect of online claims.
Social services and associated legislation contain
significant privacy provisions in relation to most information held by
administering agencies.[3]
As an example, an officer cannot be compelled to produce protected information
to a court, tribunal or authority.[4]
An agency head can provide such information, but this is discretionary and they
cannot be compelled.[5]
This can be problematic in the case of Royal Commissions,
which operate to their fullest value when they are in receipt of all relevant
information. The Bill seeks to address this issue by requiring otherwise
protected information to be provided to a Royal Commission, with the
information still protected to a large extent by the legislation which
regulates Royal Commissions.
Social services programs change relatively frequently.
This can have the effect of making references to certain named programs in the
relevant legislation redundant. Many of the later technical amendments in the
Bill address this and similar issues.
Committee consideration
Senate Standing Committee for Selection
of Bills
At its meetings of 13 May, 11 June and 16 June 2020, the
Selection of Bills Committee deferred consideration of whether to refer the
Bill to a committee for inquiry and report.[6]
Senate Standing Committee for the
Scrutiny of Bills
The Scrutiny of Bills Committee had no comment on the
Bill.[7]
Policy position of non-government parties/independents
At the time of writing, no comment on the Bill could be
located.
Position of major interest groups
At the time of writing, no comment by interest groups
could be located.
Financial implications
The Explanatory Memorandum states that the Bill has no
financial implications.[8]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government has noted that the Bill engages with the rights of people with
disability and of privacy; further noting, however, that the Bill advances the
rights of persons with a disability and that the engagement with the right to
privacy is reasonable and necessary. Overall the Government considers that the
Bill is compatible.[9]
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights made no
comment on the Bill, on the basis that it does not raise human rights concerns.[10]
Key issues and provisions
Current offence provisions
Subsection 213(1) of the Social Security
(Administration) Act 1999 makes it an offence to make a false statement
to deceive or affect rates.[11]
A person contravenes the subsection if they make a
statement that is false or misleading and the person is reckless as to whether
the statement is false or misleading and as to whether that statement deceives
or might deceive an officer doing duty in relation to the social security law
or affects, or might affect, the rate of a social security payment.
However, while a person who makes such a statement in an
online claim that is assessed automatically may be acting in the same manner as
would currently constitute an offence, they may not actually be deceiving ‘an
officer’.
Proposed additional offence provisions
Consequently, for the sake of clarity item 1 of Schedule
1 to the Bill adds proposed subparagraph 213(1)(d)(ia) which refers
to a person being reckless as to whether their statement ‘deceives or might
deceive the Human Services Department’, the operator of the automated system.
This will mean that a person will commit an offence under
section 213 of the Social
Security (Administration) Act 1999 if they:
- make
a statement that is false or misleading and
- are
reckless as to whether the statement is false or misleading and
- are
reckless as to whether the statement:
- deceives,
or might deceive, an officer doing duty in relation to the social security law
or
- deceives,
or might deceive, the Human Services Department or
- affects,
or might affect, the rate of a social security payment under the social
security law. [12]
The naming in the Bill of an actual
Department, particularly one which has changed name a number of times over the
years, may appear to be possibly problematic in the future. However, this
situation is foreshadowed by the Acts Interpretation
Act 1901—which means that even if the name of the Department is
changed, the provision will continue to apply.[13]
Similarly item 2 proposes to add the words ‘or the
Human Services Department’ after ‘officer’ in paragraphs 214(1)(a) and 214(2)(a).
Those paragraphs relate to offences for making a false or misleading statement,
or presenting a false or misleading document, to an officer. The proposed
amendment will cover the situation, for example, where a person downloads a
false or misleading document to a computer system rather than handing it to an
officer.
Provisions relating to release of information
Schedule 2 proposes to amend four separate Acts,
namely:
The effect of the proposed changes will be essentially the
same in each Act and will facilitate the disclosure of information for the
purposes of Royal Commissions.
Current provisions relating to release of information
Section 167 of the Family Assistance Administration Act
says that an officer must not, except for the purposes of the family assistance
law itself,[14]
be required to produce any document or disclose any matter or thing that has
been seen or learnt in the course of their duties to:
(c) a court; or
(d) a tribunal; or
(e) an authority; or
(f) a person;
having power to require the production of documents or the
answering of questions.
Provisions having the same effect are contained in each of
the other three Acts.[15]
Each of the four Acts has specific disclosure provisions
in relation to the Secretary,[16]
which are again essentially the same in each Act. The Secretary in each case
has the discretion to disclose otherwise protected information if the Secretary
certifies that it is in the public interest to do so.[17]
Proposed changes
Items 1, 3, 5 and 7 of Schedule 2 to the
Bill propose to insert references to the Royal Commissions
Act 1902 into the clause in each of the four Acts relating to an
officer’s duty not to produce documents and information. The effect of this
will be that the exemption relating to the performance of the officer’s duties
under the relevant Act will also extend to the Royal Commissions Act.
Thus, for example, the sentence above in relation to section 167 of the Family
Assistance Administration Act would in future say ‘an officer must not,
except for the purposes of the family assistance law or the Royal Commissions Act 1902 ...’.
The effect of this amendment is that an officer would be
required to provide documents or disclose other matters or things to a Royal
Commission when a request had been properly made in accordance with the
provisions of the Royal Commissions Act.
Items 2, 4, 6 and 8 propose to include provisions
in each of the four Acts, namely:
- proposed
subsection 168(5) Family Assistance Administration Act
- proposed
subsection 81(4) Business Services Act
- proposed
subsection 28(7A) Disability Services Act and
- proposed
subsection 208(5) Social Security Administration Act.
These provisions say, in each case, that when the
Secretary or an officer is required under the Royal Commissions Act to
disclose information the person must do so, notwithstanding that the required
information is otherwise protected under each of the four Acts.
In his second reading speech the Minister commented that
the Department of Social Services and Services Australia have cooperated with
Royal Commissions in the past.[18]
This would appear to indicate that the Bill clarifies the legal position rather
than representing a change of policy.
Are there still protections for the information?
The Royal Commissions Act would allow the Secretary
or officer not to produce the relevant documents if ‘the person has a
reasonable excuse’.[19]
Reasonable excuse in this context is defined in the Royal Commissions Act
as an excuse ‘which would excuse an act or omission of a similar nature by a
person served with a subpoena in connection with a proceeding before a court of
law’.[20]
The Explanatory Memorandum to the Bill provides that ‘examples of reasonable
excuse are legal professional privilege and public interest immunity’.[21]
The Royal Commission can inspect and copy the documents
and retain the document(s) ‘for so long as is reasonably necessary for the
purposes of the inquiry to which the documents or other things are relevant’,[22]
and should return the item(s) when its retention ‘ceases to be reasonably
necessary for the purposes of the inquiry to which the document or other thing
is relevant’.[23]
It should be noted that a person who receives a summons to
produce a document or other thing to a Royal Commission, and who without
reasonable excuse refuses or fails to do so, is subject to the penalties under
the Royal Commissions Act—namely, a maximum penalty of two years’
imprisonment.[24]
Timing
Item 9 states that the provisions in items 1 to
8 of Schedule 2 will only apply in relation to a summons issued by a Royal
Commission on or after the commencement of the Bill’s provisions; although the
summons can apply to documents that existed before that date.
Other provisions
In 2006, 2007 and 2008 a series of one-off payments were
made to older Australians.[25]
As well, older Australians of working age were able in the past to access a
Mature Age Allowance or Mature Age Partner Allowance.[26]
There are also provisions in the Income Tax
(Transitional Provisions) Act 1997 relating to a ‘directed termination
payment’. None of these payments are now current.
This means that the legislative provisions relating to
these payments are now obsolete, and many of the technical amendments in Schedule
3 are directed at removing references to those payments. Other technical
amendments correct minor drafting errors, without affecting the meaning of the
relevant legislation.
There are also provisions (for example, items 101 to
117) that represented transitional provisions in the past. These provisions
are no longer necessary and so are removed by the relevant items in Schedule
3.
[1]. See
sections 213 and 214 of the Social Security
(Administration) Act 1999.
[2]. Section
6A of the Social
Security (Administration) Act 1999.
[3]. See,
for example, Division 3 of Part 5 of the Social Security
(Administration) Act 1999.
[4]. Section
207 of the Social
Security (Administration) Act 1999.
[5]. Section
208 of the Social
Security (Administration) Act 1999.
[6]. Senate
Standing Committee for Selection of Bills, Report,
4, 2020, The Senate Canberra, 14 May 2020; Senate Standing Committee for
Selection of Bills, Report,
5, 2020, The Senate, Canberra, 12 June 2020; Senate Standing Committee for Selection
of Bills, Report,
6, 2020, The Senate Canberra, 17 June 2020.
[7]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 7, 2020, The Senate, Canberra, 10 June 2020, p. 34.
[8]. Explanatory
Memorandum, Social Services and Other Legislation Amendment (Omnibus) Bill
2020, p. 1.
[9]. The
Statement of Compatibility with Human Rights can be found at pages 11 to 16 of
the Explanatory Memorandum to the Bill.
[10]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 6, 2020, 20 May 2020, pp. 21, 22.
[11]. The
offence has a maximum penalty of 12 months imprisonment—section 217 of the Social Security
(Administration) Act 1999.
[12]. The
bolded text is to be inserted by the Bill.
[13]. Acts
Interpretation Act 1901, subsection 19A(1), item 2.
[14]. ‘Family
assistance law’ is defined at subsection 3(1) of the A New Tax System
(Family Assistance) (Administration) Act 1999.
[15]. Business
Services Act, section 80; Disability Services Act, subsection 28(4);
Social Security (Administration) Act, section 207.
[16]. The
Secretary is a defined term in each Act, and refers to the person holding the
office of Secretary of the relevant Department.
[17]. Family
Assistance Administration Act, section 168; Business Services Act,
section 81; Disability Services Act, subsection 28(5); Social
Security Administration Act, section 208.
[18]. S
Robert, ‘Second
reading speech: Social Services and Other Legislation Amendment (Omnibus) Bill
2020’, House of Representatives, Debates, 13 May 2020, p. 3236.
[19]. Royal
Commissions Act, subsection 3(5). This is a general provision—it does not
specifically refer to these documents.
[20]. Royal
Commissions Act, section 1B.
[21]. Explanatory
Memorandum, Social Services and Other Legislation Amendment (Omnibus) Bill
2020, p. 4. However, see section 6AA of the Royal Commissions
Act 1902, which limits the extent to which a claim of legal professional
privilege will be accepted as a reasonable excuse for failure to produce a
document.
[22]. Royal
Commissions Act, subsection 6F(1).
[23]. Royal
Commissions Act, subsection 6F(2).
[24]. Royal
Commissions Act, subsection 3(4).
[25]. Explanatory
Memorandum, Social Services and Other Legislation Amendment (Omnibus) Bill
2020, p. 8.
[26]. Ibid.
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