Explanatory Memorandum
(Circulated by authority of the Minister for Employment Participation and Childcare, the Honourable Kate Ellis MP)Schedule 4 - Protected information
Summary
This Schedule amends the information protection provisions of the Family Assistance Administration Act to enable disclosure of information for the purposes of the new Education and Care Services National Law (National Law), so far enacted in the Schedule to the Education and Care Services National Law Act 2010 of Victoria (Victorian Act), that is to start operating from 1 January 2012.
Further, amendments are made to the Family Assistance Administration Act, the Social Security Administration Act 1999 (Social Security Administration Act) and the Student Assistance Act 1973 (Student Assistance Act) to enable a person to use information with the express or implied consent of the person to whom that information relates. The amendments also give the Minister a discretion to make guidelines for the exercise of the Secretary's power to give information to agency heads, and, in the case of the amendments to the Family Assistance Administration Act, also to a person who is authorised by the person to whom the information relates.
Minor consequential amendments are made to the Age Discrimination Act 2004 .
Background
Amendments are made to the Family Assistance Administration Act to enable disclosure of information relating to education and care services for the purposes of the new Education and Care Services National Law (National Law). So far, the National Law has been enacted in the Schedule to the Education and Care Services National Law Act 2010 of Victoria (Victorian Act), that is to start operating from 1 January 2012.
The objective of the National Law is to establish a national education and care services quality framework (National Quality Framework) for the delivery of education and care services to children which, among other things, ensures the safety, health and wellbeing of children attending education and care services, establishes a nationally integrated system based on shared responsibility between participating jurisdictions and the Commonwealth, improves public knowledge, and access to information, about the quality of education and care services and reduces the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth.
All other jurisdictions are working towards passage of legislation referring to the Victorian Act to give effect to the National Quality Framework. The exception will be Western Australia which will pass corresponding legislation, also constituting the National Law, through its Parliament.
The sharing of information about education and care services between the Commonwealth and the State and Territory regulatory authorities administering the National Law is underpinned by the COAG National Partnership Agreement on National Quality Agenda on Early Childhood Education and Care (December 2009), under which the parties agreed to take necessary legislative steps to enable free and open exchange of data and information relating to education and care services, for the purposes of the National Quality Framework.
The kind of information that is intended to be disclosed for the purposes of the National Law (that is, for the purposes of regulating a new framework for education and care services) includes compliance activities undertaken in relation to education and care services, financial information about education and care services or information about a person with management control of an education or care service.
The information that may be disclosed is the information that relates to education and care services, which includes information relating to centre-based long day care services, family day care services and outside school hours care services approved for the purposes of the family assistance law. Such information obtained for the purposes of the family assistance law may be 'protected information' under the provisions of the Family Assistance Administration Act, and therefore prohibited from disclosure. The amendments made in this Schedule will enable disclosure of such information if the disclosure is made for the purposes of the National Law.
The Family Assistance Administration Act, the Social Security Administration Act and the Student Assistance Act provide protection for information held by the Department administering those laws (including Centrelink) for the purposes of those laws. The information protection provisions in the three bodies of legislation are modelled on each other and are intended to operate in a consistent fashion.
Minor amendments are made to the information protection provisions in those Acts to:
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- simplify the language; and
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- give the Minister a discretion to make guidelines for the exercise of the Secretary's power to give information to agency heads or to an authorised person, where appropriate (rather than making it mandatory to make guidelines); and
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- enable a person to use information with the express or implied consent of the person to whom that information relates.
Explanation of the changes
Disclosure of information for the purposes of the National Law
A New Tax System(Family Assistance (Administration) Act 1999
Item 3 - After subsection 161(1)
Section 161 is a general provision relating to operation of Division 2-Confidentiality.
Subsection 161(1) makes lawful disclosure of information if the information is disclosed for the purposes of the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 .
Item 3 inserts new subsections 161(1A) and 161(1B) that relates to disclosure of information for the purposes of the Education and Care Services National Law.
New subsection 161(1B) defines 'Education and Care Services National Law' as Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria (Victorian law).
New subsection 161(1A) makes lawful disclosure of information if the information is disclosed for the purposes of any of the following:
- (a)
- the Education and Care Services National Law applying as a law of a State or Territory (currently, this is the Victorian law);
- (b)
- a law of a State or Territory that applies the Education and Care Services National Law as a law of that State or Territory, whether or not that law has commenced (this refers to the relevant laws of all other States and Territories, except Western Australia, that are yet to commence);
- (c)
- regulations made under the Education and Care Services National Law;
- (d)
- a law of a State or Territory that substantially corresponds to the provision of the Education and Care Services National Law, whether or not that law has commenced (this refers to such law yet to be enacted by Western Australian Parliament);
- (e)
- regulations made under the Western Australian law referred to in paragraph (d).
Notes 1 and 2 at the end of new subsection 161(1A) inform the reader that the heading 'Commonwealth laws' is inserted to the existing subsection 161(1), and the heading 'No effect on operation of Freedom of Information Act 1982' is inserted to the existing subsection 161(2).
Minister's power to make guidelines
A New Tax System (Family Assistance) (Administration) Act 1999
Items 5, 6 and 7 - Subsections 168(2) and (3), Section 169 and Transitional - guidelines for exercise of Secretary's disclosure powers
Social Security Administration Act 1999
Items 8, 9, and 10 - Subsections 208(2) and (3), Section 209 and Transitional - guidelines for exercise of Secretary's disclosure powers
Student Assistance Act 1973
Items 12, 13 and 14- Subsections 355(2) and (3), Section 356 and Transitional - guidelines for exercise of Secretary's disclosure powers
Age Discrimination Act 2004
Items 1 and 2 - Subsection 41(2A) and Subsection 41(3A)
Under section 169 of the Family Assistance Administration Act, section 209 of the Social Security Administration Act and section 356 of the Student Assistance Act, the Minister is required to make guidelines to guide the exercise of the Secretary's discretion to provide information protected under those Acts:
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- in the public interest;
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- to the head of another agency for that agency's purposes; and
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- in the case of the amendments to the Family Assistance Administration Act, also to a person who is authorised by the person to whom the information relates.
There has never been perceived to be a need for the Minister to make guidelines to guide the discretion to give information to agency heads or to an authorised person, and no such guidelines have ever been made. Consequently, section 169 of the Family Assistance Administration Act, section 209 of the Social Security Administration Act and section 356 of the Student Assistance Act are repealed and new provisions substituted that give the Minister a discretion to make such guidelines, that is, the Minister 'may' make guidelines (see Items 6, 10 and 14 ). The substituted sections do not include the current redundant provisions which state the Minister may revoke or vary the guidelines (this is already covered by subsection 33(3) of the Acts Interpretation Act 1901 ). Apart from giving the Minister a discretion to make the guidelines, there is no substantive change to these provisions.
There are existing guidelines made by the Minister to guide the exercise of the Secretary's discretion to disclose information in the public interest. See, for example, the A New Tax System (Family Assistance ) ( Administration ) ( Public Interest Certificate Guidelines ) ( DEEWR) Determination 2009 (No.1 ), the Social Security (Public Interest Certificate Guidelines ) ( DEEWR) Determination 2008 , and the Student Assistance (Public Interest Certificate Guidelines) Determination 2008 . To avoid these existing guidelines being impliedly repealed by the repeal and substitution of the sections under which they are made, they are saved by the savings provisions in Items 7, 11 and 15 .
Items 1 and 2 amend subsections 41(2A) and (3A) of the Age Discrimination Act 2004 to correct references to the provisions of the Family Assistance Administration Act and the Student Assistance Act amended by Items 6 and 10 .
The amendments made to subsections 168(2) and (3) of the Family Assistance Administration Act, subsections 208(2) and (3) of the Social Security Administration Act and to subsections 355(2) and (3) of the Student Assistance Act by Items 5, 9 and 13 , respectively, recognise the fact that there may be no guidelines to guide the exercise of the Secretary's discretion to disclose information where the disclosure is in the public interest or to agency heads, or to a person who is authorised by the person to whom the information relates to obtain it.
Use of protected information with the express or implied consent of person to whom information relates
A New Tax System (Family Assistance) (Administration) Act 1999
Item 4 - At the end of subsection 162(2)
Social Security Administration Act 1999
Item 8 - At the end of subsection 202(2)
Student Assistance Act 1973
Item 12 - At the end of subsection 351(2) (before the note)
Currently, the Secretary is able to disclose information about a person obtained for the purposes of the family assistance law, social security law, or Student Assistance Act with the consent of that person: see subparagraph 168(1)(b)(ii) of the Family Assistance Administration Act, subparagraph 208(1)(b)(iii) of the Social Security Administration Act and paragraph 355(1)(d) of the Student Assistance Act.
However, the Secretary or anyone else is not able to use that information for purposes other than those specifically prescribed in the family assistance law, social security law, and Student Assistance Act, even with the consent of the person concerned. It is not clear that information Centrelink holds for family assistance, social security, or student assistance purposes can be used by Centrelink to facilitate provision of payments and services by Centrelink that stand outside those laws (for example, the provision of ex gratia payments or payments under administrative schemes for economic stimulus or household stimulus payments) even with the consent of the individuals concerned.
The amendments made by Items 4, 8, and 12 add a new paragraph (f) to subsection 162(2) of the Family Assistance Administration Act, subsection 202(2) of the Social Security Administration Act and subsection 351(2) of the Student Assistance Act to make it clear that a person can record, disclose or otherwise use protected information with the express or implied authorisation of the person to whom the information relates.
Subparagraph 168(1)(b)(ii) of the Family Assistance Administration Act currently authorises the Secretary to disclose information 'acquired by an officer in the exercise of the officer's powers, or the performance of the officer's duties or functions, under the family assistance law' to a person who is expressly or impliedly authorised by the person to whom the information relates. In contrast, new paragraph 162(2)(f) of the Family Assistance Administration Act authorises the disclosure of 'protected information', as defined in that Act, with the express or implied authorisation of the person to whom the information relates. This distinction between the nature of the information contemplated in each of the provisions means that new paragraph 162(2)(f) would not replace subparagraph 168(1)(b)(ii) of the Family Assistance Administration Act. Therefore, subparagraph 168(1)(b)(ii) of the Family Assistance Administration Act has been retained.
For the same reason, subparagraph 208(1)(b)(ii) of the Social Security Administration Act and subparagraph 355(1)(d) of the Student Assistance Act are also retained.