BILLS DIGEST NO. 3, 2020–21              6 August 2020

Social Services and Other Legislation Amendment (Omnibus) Bill 2020

David Markham
Law and Bills Digest Section

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:

•         A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act)

•         Business Services Wage Assessment Tool Payment Scheme Act 2015 (Business Services Act)

•         Disability Services Act 1986

•         Social Security (Administration) Act 1999.

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.

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[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.