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2004 - 2005 - 2006 - 2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HUMAN SERVICES (ENHANCED SERVICE DELIVERY) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator the Hon. Ian Campbell,
Minister for Human Services)
HUMAN SERVICES (ENHANCED SERVICE DELIVERY) BILL
2007
OUTLINE
The purpose of the Human Services (Enhanced Service Delivery) Bill 2007 (referred to
in this Explanatory Memorandum as `the Bill') is to establish a framework for the
Health and Social Services Access Card (referred to in this Explanatory Memorandum
as `the access card' or `the card') which will streamline and modernise Australia's
delivery of health and social service benefits.
The Bill:
· sets out the objects and purposes of the legislation which will form a
basis for the uses of the card and a basis for collection, use and
disclosure of information on the register and card;
· provides for the introduction of a new chip-based card to replace the
Medicare Card and numerous other cards and vouchers used to access
Australian Government benefits;
· establishes the register and the card to provide certainty as to the
information that will be on the register, surface of the card, and in the
chip in the access card;
· introduces a registration process for the card with substantially
improved proof of identity arrangements;
· prohibits unauthorised demands for, and use of, the access card for
identity purposes; and
· vests ownership of the access card in the card holder.
In summary, the objects of the Bill are to:
(a) reduce complexity in accessing Commonwealth benefits;
(b) facilitate a more reliable method of accessing Commonwealth benefits;
(c) reduce fraud on the Commonwealth;
(d) provide improved access to relief in emergency situations; and
(e) permit card owners to use their card for any lawful purpose they choose.
Additionally, the Bill clearly states that it is an object of the Bill that access cards are
not to be used as, and do not become, national identity cards.
The Government provides a range of benefits, services and payments through the
Department of Veterans' Affairs, the Department of Human Services (including the
Child Support Agency and CRS Australia) and the Human Services agencies
(including Centrelink, Medicare Australia, Australian Hearing Services and Health
Services Australia Limited). These agencies are defined in the Bill as the
`participating agencies'.
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It is services provided by the participating agencies (even where those services are also
provided by other organisations such as non-Government organisations, for example
contracted service providers under the Hearing Services Administration Act 1997)
which may require the access card for the delivery of those services and payments.
It is intended that registration for the card will commence in early 2008 and the first
cards will be issued shortly thereafter. The Government has announced that from 2010,
it will be mandatory to be registered and have an access card to claim Commonwealth
benefits, except in exceptional circumstances and to protect vulnerable groups. It is
intended that subsequent legislation will give effect to those announced initiatives.
The access card will use smartcard technology to replace existing cards because the
technology used is more secure and harder to duplicate than existing cards such as the
Medicare Card. The smartcard technology also offers the potential for greater privacy
protections than many of the existing cards (such as the Health Care Card which
currently includes address details on its surface) because more information is kept out
of the immediate view of any unauthorised person.
The Register established under the Bill will be set up as a separate database from the
databases of participating agencies. It will not contain medical information or
transactional records. Detailed customer records will continue to be held separately by
the participating agencies. Existing agency records and those required for agency
transactions will remain with the relevant agency.
The Bill provides that the surface of the card will only have limited information on
display. It is proposed that the card owner's photograph and preferred name will be on
the front surface of the card, with other optional information. A person's digitised
signature, access card number and card expiry date will be on the back surface of the
card. To add any further information to the surface of the card will require an
amendment to the legislation.
Eligibility for benefits currently requires that a person establish to the satisfaction of a
relevant agency that the person is who they say they are, so that benefits reach the
person eligible for those benefits. Strengthened proof of identity will be a fundamental
element in the registration process for an access card. That process will be formalised
through the identity guidelines established through the Bill. It is expected that proof of
identity under those guidelines will be based on the National Identity Security Strategy
to be established by the Attorney-General's Department, in addition to building on
existing processes to make them more robust and resistant to fraud.
The Bill will vest ownership of the card in the card holder. This is intended to provide
greater choice to individuals about the uses to which they might choose to put the card
other than for health and social service purposes. The card belongs to the card owner
and he or she can use the card for whatever lawful purpose they choose.
To support card owners' choice in relation to the use of the card, this Bill creates a new
offence, punishable by a maximum penalty of 5 years imprisonment or 500 penalty
units (or both), for any person requiring a card owner to produce their card for identity
purposes otherwise than in connection with the provision of Commonwealth health and
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social service benefits or to verify concessional status or entitlement to certain health
services.
FINANCIAL IMPACT STATEMENT
The cost of establishing the access card system is estimated to be $1.09 billion over
four years. An independent assessment by KPMG has found that the introduction of
the access card would lead to substantial cost savings from reduction in identity fraud,
abuse of concession entitlements and errors, and from improved efficiencies. KPMG
has estimated that the fraud and leakage savings could be as much as $3 billion over
ten years.
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ABBREVIATIONS
The following abbreviations are used in this Explanatory Memorandum:
DVA means the Department of Veterans' Affairs;
DHS means the Department of Human Services (including the Child Support
Agency and CRS Australia);
Human Services agencies means Centrelink, Medicare Australia, Australian
Hearing Services and Hearing Services Australia Limited;
ICD means International Classification of Diseases;
ISO means the International Organization for Standardization;
Secretary means the Secretary of DHS;
Taskforce means the Consumer and Privacy Taskforce headed by Professor
Allan Fels, AO established by the Minister for Human Services.
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NOTES ON CLAUSES
Part 1 - Introduction
Division 1 - Preliminary
Clause 1 - Short title
This clause sets out the short title of the legislation. The short title reflects that this is a
Bill to improve the delivery of Commonwealth benefits by DVA, DHS and the Human
Services agencies.
Clause 2 - Commencement
Clauses 1 and 2 of the Bill will come into operation on the day the Bill receives the
Royal Assent.
It is proposed that the remainder of the Bill will come into operation on a date to be
fixed by Proclamation of the Governor-General.
Clause 2 provides that if the Bill is not proclaimed to commence within 18 months of
Royal Assent, it will automatically commence 18 months after receiving the Royal
Assent. This will allow sufficient time to ensure that the infrastructure and
administrative arrangements that are required for the effective implementation of the
access card system are in place to ensure a smooth transition to the new access card.
Division 2 - What this Act is about
Clause 3 - What this Act is about
This clause sets out in broad terms what the Bill is about.
Division 3 - Interpretation
Clause 4 - Identifying defined terms
This clause advises readers that words that are defined in the Bill are identified by an
asterisk at the start of the word. This is to enable readers to quickly recognise that a
word that appears in the text of the Bill may have a specific meaning defined in the Bill
and that readers should refer to clause 5 to confirm the meaning intended.
If the word occurs several times in the one provision the asterisk will generally only
appear on the first occurrence of the word.
The words `access card', `holder', `owner', `Secretary' and `you' do not have asterisks
even though they are defined in clause 5. This is because the words occur so frequently
in the Bill that it would be distracting to readers to include an asterisk every time the
words appear in the text.
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Clause 5 - Definitions
The Bill contains definitions of a number of expressions that are used in the Bill. Many
of the definitions are purely technical in nature (e.g. definitions dealing with the names
of existing cards) or are self explanatory. However, some of these definitions are more
significant to the overall legislative scheme proposed in the Bill. Details of those
definitions are set out below:
access card
The Bill defines access card to mean the card issued by the Secretary under clause 24
and known as the Health and Social Services Access Card, or such other name as is
determined by the Minister for Human Services in writing.
It is expected that a final name of the card will be determined by the Minister for
Human Services shortly. For this reason, the Bill provides that the Minister for Human
Services will be able to determine the final name of the card. Details of the name
determined by the Minister will be published in newspapers. DHS also proposes to
publish details on the internet. See clause 27 for details about the name and form of the
access card.
Australian citizen
Australian citizen is defined by reference to the Australian Citizenship Act 1948. This
definition is important in determining and recording entitlements to many
Commonwealth benefits.
Australian resident
Australian resident is defined by reference to the relevant health and social services
legislative provisions. This definition is important in determining and recording
entitlements to many Commonwealth benefits.
Benefit card
This definition lists those existing cards that are recognised as recording concession or
treatment eligibility. These cards are:
· a PBS Entitlement Card
· a PBS Safety Net Concession Card
· a Pensioner Concession Card
· a Health Care Card (including Low Income Health Care Card and
Foster Child Health Care Card)
· a Reciprocal Health Care Card
· a Commonwealth Seniors Health Card
· a Cleft Lip and Palate Card
· a DVA Gold Card
· a DVA White Card
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· a DVA Orange Card
· War Widow/Widower Transport Card.
The definition of `benefit card' also includes a Medicare Card, but only to the extent
that it is provided to a limited class of specified eligible persons. The Medicare Card
included in the definition of a benefit card is limited to a small class of persons who
have time-limited Medicare Cards and whose application for Australian residency is
pending. In these circumstances it is important to know the expiry date of such cards so
as to ensure that Medicare benefits are properly linked to the life of the card. This
information will be included in the Register for this purpose.
The definition of benefit card also includes a mechanism (see paragraph (m) of the
definition) to allow additional cards to be prescribed as `benefit cards' in the event that
new concession cards may be introduced prior to the access card becoming fully
operational in 2010.
In the event that a new concession card is introduced and it is administered by, or
involves, a participating agency then it will be possible to add that card to the
definition of `benefit card' by means of a regulation. Any such regulation will need to
be tabled in Parliament and will be subject to disallowance by either House of the
Parliament.
Information about a benefit card held by an individual will be listed in the Register (see
item 7 of the table in clause 17) and in the Commonwealth's area of the chip in the
individual's access card (see item 10 of the table in clause 34). This is to ensure that
relevant benefits or concessions will only be provided to those individuals who are
entitled to the benefit or concession.
benefit
Commonwealth benefits take many forms beyond the payment of pensions and the
like. For this reason `benefit' is defined in an inclusive way so as to ensure that it is
capable of capturing all relevant benefits that are currently delivered by the
Commonwealth.
The word `benefit' has been defined to include a pension, allowance, concession, grant
or payment as well as a card or voucher entitling its holder to a concession or a
payment of any kind.
This definition is relevant to the definitions of `Commonwealth benefit' and
`participating agency'. These definitions reduce the scope of the definition of benefit
so as to limit it to benefits involving the participating agencies.
chip
This definition is intended to ensure that the storage and processing medium in the
access card is able to keep pace with technological changes.
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Commonwealth authority
The definition of Commonwealth authority has been defined to pick up the definition
of Commonwealth authority in the Commonwealth Authorities and Companies Act
1997. Under that Act, Commonwealth authority has been defined to mean either of the
following kinds of body that holds money on its own account:
(a) a body corporate that is incorporated for a public purpose by a
Commonwealth Act;
(b) a body corporate that is incorporated for a public purpose by:
(i) regulations under an Act; or
(ii) an Ordinance of an external Territory (other than Norfolk Island)
or regulations under such an Ordinance;
and is prescribed by regulations under the Commonwealth Authorities
and Companies Act 1997.
The definition is relevant for the purposes of clause 70 (`Delegations by the
Secretary'). In that clause, the meaning of Commonwealth authority is limited to those
Commonwealth authorities that are prescribed by regulations under the Bill. This will
ensure Parliamentary oversight of any Commonwealth authorities that may be
prescribed for the purposes of clause 70.
Commonwealth benefit
The definition of `Commonwealth benefit' reflects the fact that the relevant `benefits'
being dealt with in the Bill are only those benefits that are provided to individuals and
are administered or delivered, wholly or partly, by the participating agencies. The
benefits within this definition include (but are not limited to) Medicare benefits,
benefits provided by Centrelink, benefits provided to veterans by the Department of
Veterans' Affairs and benefits provided under the pharmaceutical benefits scheme.
Benefits not involving participating agencies will not be covered by the Bill.
Commonwealth company
The definition of Commonwealth company has been defined to pick up the definition
of Commonwealth company in the Commonwealth Authorities and Companies Act
1997. Under that Act, Commonwealth company has been defined to mean a
Corporations Act company in which the Commonwealth has a controlling interest.
However, it does not include a company in which the Commonwealth has a controlling
interest through one or more interposed Commonwealth authorities or Commonwealth
companies.
The definition is relevant for the purposes of clause 70. In that clause, the meaning of
Commonwealth company is limited to those Commonwealth companies that are
prescribed by regulations under the Bill. This will ensure Parliamentary oversight of
any Commonwealth company that may be prescribed for the purposes of clause 70.
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Commonwealth officer
This definition has been drafted so as to include Commonwealth public servants,
Commonwealth statutory office holders, employees of Commonwealth authorities and
employees of agencies established under a law of the Commonwealth. The definition
will also include individuals who are employed under a contract with the
Commonwealth, a Commonwealth authority or a Commonwealth company.
The definition includes an individual who is employed by a Commonwealth company
within the meaning of the Commonwealth Authorities and Companies Act 1997. This
will ensure that officers in Health Services Australia Limited (which is a participating
agency) are included within the definition.
The definition of Commonwealth officer is relevant for the purposes of clauses 41, 68,
70, 71 and 72.
DVA individual
A DVA individual is defined to mean an individual who:
(a) is eligible or qualified for a Commonwealth benefit under:
(i) the Veterans' Entitlements Act 1986; or
(ii) the Military Rehabilitation and Compensation Act 2004; or
(iii) the Safety, Rehabilitation and Compensation Act 1988 in relation to a
defence-related claim (within the meaning of Part XI of that Act); or
(iv) the Australian Participants in British Nuclear Tests (Treatment) Act
2006; or
(v) the scheme known as the Study of Health Outcomes in Aircraft
Maintenance Personnel Health Care Scheme; or
(b) is eligible or qualified for an ex-gratia lump sum payment in relation to
F-111 aircraft deseal/reseal work; or
(c) is determined by the DVA Minister under clause 67 to be a DVA
individual.
The primary effect of being included in the definition is that certain information about
the DVA individual will be included on the Register, if the individual requests the
Secretary to include that information on the individual's access card. For example,
under item 7(c) in the table in clause 30, former prisoners of war can request the
Secretary to include that fact on their access card - in which case the acronym "POW"
will be included on the card. This reflects current practice for DVA cards. In these
circumstances, that acronym will be included on the Register under item 10(c) of the
table in clause 17 if the person is a DVA individual.
Paragraph (c) of this definition will provide the DVA Minister with the flexibility to
include specified individuals (or classes of individuals) in the definition of DVA
individual, for example, where such individuals may be engaged in defence-related
activities but may not be covered by the other parts of the definition of DVA
individual. See also clause 67.
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inappropriate name
Under the Bill, the Secretary will be authorised to refuse to include a person's
preferred name on the Register and access card if that name is inappropriate. An
inappropriate name is a name that:
(a) is obscene or offensive; or
(b) could not practicably be established by repute or usage:
(i) because it is too long; or
(ii) because it consists of or includes symbols without phonetic
significance; or
(iii) for some other reason; or
(c) includes or resembles an official title or rank; or
(d) is contrary to the public interest for some other reason.
This definition is based on a similar provision in the New South Wales Births, Deaths
and Marriages Registration Act 1995 which prevents registration of prohibited names.
Similar provisions apply in other States and Territories.
legal name
This definition has been included to clarify what is meant by the expression `legal
name' when used in the Bill.
Because the registration process established under the Bill (see clauses 12 to 20) is
intended to be a robust and comprehensive process with substantially improved proof
of identity arrangements, applicants wishing to be registered will need to provide
documents or information relating to the person's identity. The documents that will be
required will be specified by the Secretary and will be documents that establish the
commencement of a person's identity and the use of that identity in the community.
Given its importance, the Register will include a card owner's `legal name' (which
may be different to the person's preferred name). The person's `legal name' will
normally be established on the basis of:
(a) the name on the individual's Australian birth certificate; or
(b) the name on the individual's Australian passport; or
(c) the name on a certificate of citizenship granted under the Australian
Citizenship Act 1948; or
(d) the name on a certificate or record of the individual's marriage kept by the
relevant Australian Registrar of births, deaths and marriages; or
(e) a name effected by way of a change of name of an individual kept by the
relevant Australian Registrar of births, deaths and marriages; or
(f) the name on the individual's foreign passport.
This last paragraph will assist individuals (for example, visitors to Australia) who may
be entitled to Commonwealth benefits but who will not be able to produce any of the
documents listed above because they are restricted to documents that are issued by
Australian authorities. To deal with these situations, the definition of legal name
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provides (paragraph (f)) that a person may use a passport issued by a foreign country to
establish their legal name - but only where the person does not have any of the
documents listed in paragraphs (a) to (e) of the definition.
It is considered that a foreign passport is an appropriate document to establish a legal
name because:
(a) a foreign passport is likely to show the person's current name (e.g. if
they have changed their name through marriage - and that marriage did
not occur in Australia);
(b) a foreign passport contains a person's photograph, and is therefore likely
to be useful in showing it belongs to that person;
(c) a foreign passport can generally be readily verified by the issuing
Government;
(d) other relevant documents, such as foreign birth certificates, are
considered more susceptible to fraud;
(e) non-citizens are more likely to have their foreign passport with them
while in Australia, rather than their birth certificate.
Some individuals may not hold a foreign passport or any of the other documents
referred to. To deal with these types of special circumstance, paragraph (g) of the
definition of legal name will allow the making of regulations to list the documents that
may be used to establish a legal name. Any such regulations will be subject to
Parliamentary scrutiny and disallowance.
Documents for some known categories of persons might include:
(a) for persons who are in Australia as refugees (holding temporary or
permanent protection visas) or humanitarian entrants - a `Visa
Evidencing Card' or a `Document For Travel To Australia' issued by
the Department of Immigration and Citizenship. Others may have a
Titre de Voyage (generally issued to persons recognised as refugees
under the Refugees Convention) or a Certificate of Identity (generally
issued to stateless persons), both of which are issued by the Department
of Foreign Affairs and Trade, or documents issued by the International
Organisation for Migration (IOM), the United Nations High
Commissioner for Refugees (UNHCR) or the Red Cross;
(b) for protection visa applicants, a letter issued by the Department of
Immigration and Citizenship about their status.
There may be circumstances where some individuals may not be able to produce any
of the documents that are contemplated in the definition of `legal name'. To deal with
these situations, the Bill contains a mechanism in clause 65 to allow persons to be
exempted from providing their `legal name' within the meaning of this definition. The
Minister will be able to exempt persons in a class and the Secretary will be able to
provide an exemption in individual cases.
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participating agency
This expression is defined to mean any of the following agencies:
· the Department of Human Services (including the Child Support
Agency and CRS Australia);
· the Department of Veterans' Affairs;
· the CEO of Medicare Australia;
· the CEO of Centrelink;
· Australian Hearing Services;
· Health Services Australia Limited.
These are the Commonwealth agencies that are involved in the provision of
Commonwealth benefits covered by the Bill. While other Commonwealth agencies
may provide a range of other Commonwealth benefits, this Bill is restricted to those
Commonwealth benefits that are provided by or involve the listed participating
agencies.
This definition is particularly relevant to clause 41. That clause restricts the use to
which officers of participating agencies may put an access card. The combined effect
of the definition of participating agency and clause 41 is that officers in those agencies
may only use an access card in order to facilitate the provision of benefits, services,
programs or facilities to some or all members of the public where the provision
involves a participating agency. Such officers will not be able to use the access card for
any other purposes unless it is with the card owner's consent.
Secretary
In accordance with subsection 19A(3) of the Acts Interpretation Act 1901, the
reference to the Department in this definition is to be read as a reference to DHS,
which is the Department that will administer the Bill. Accordingly, the definition of
Secretary means the Secretary of the Department of Human Services.
The Secretary of the Department of Veterans' Affairs will also have certain powers and
functions under the Bill. In those cases, the Bill expressly refers to the DVA Secretary.
Division 4 - Objects and purposes of this Act
Clause 6 - Objects of this Act
The objects clause highlights the Government's rationale for the access card i.e. to
improve the delivery of Commonwealth benefits to the community and to reduce fraud
on the Australian taxpayer.
The access card is intended to streamline the provision of Commonwealth benefits by:
· reducing the number of cards and vouchers that many people have to
hold to access various benefits. This will result in many people having
to carry fewer cards;
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· only requiring individuals to register once for an access card, thereby
eliminating the need to repeatedly provide details to different health and
social services agencies;
· eliminating the need to contact multiple agencies to update information
- if individuals change their address they will only need to let one
agency know;
· providing quicker and easier access to one-off disaster relief and
emergency funds, resulting in faster access to payments;
· providing an option to voluntarily include information such as
emergency contact details, allergies, health alerts, chronic illnesses,
childhood immunisation or organ donor status.
The Bill will also permit card owners to use their cards for such other lawful purposes
that they choose. This is an important element of the new access card. The card will
belong to the card owner and card owners will be able to use their card for whatever
lawful purposes they choose.
As the access card is not a national identity card and is not intended to be used as a
national identity card, subclause 6(2) expressly provides that it is an object of the Bill
that access cards are not to be used as, and do not become, national identity cards.
Subclause 6(2) clearly expresses the Government's intention that an access card is not
a national identity card and is not to become a national identity card. However, if
individuals choose to use the card for identity purposes they may do so. This is made
clear by paragraph 6(1)(e) and clause 40.
The use of access cards in connection with the provision of health and social service
benefits to verify that persons are entitled to a benefit is not to be taken to mean that a
card is a national identity card.
Clause 7 - The purposes of this Act
While this clause is similar to clause 6, it operates differently and is a central provision
in limiting the way the new card can be used.
This clause makes it clear that the purposes of the Bill are to facilitate the provision of
benefits, services, programs or facilities to some or all members of the public, in those
circumstances where the provision of those benefits, services, programs or facilities
involves the following participating agencies:
· DHS;
· DVA;
· the CEO of Medicare Australia;
· the CEO of Centrelink;
· Australian Hearing Services;
· Health Services Australia Limited.
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As one of the objects of the Bill is to `reduce fraud on the Commonwealth in relation to
the provision of Commonwealth benefits', the reference in this clause to facilitating the
`provision' of benefits is intended to ensure that the purposes of the Bill extend to
preventing the obtaining of Commonwealth benefits by persons who are not entitled to
those benefits or at rates exceeding those at which they are entitled to receive them.
This clause should also be read in conjunction with clause 41 (`Use of access card by
officers in participating agencies'). Clause 41 has been drafted so as to ensure that the
officers in participating agencies can only use the access card for the `purposes of this
Act'. Accordingly, those officers will only be able to use the access card to facilitate
the provision of benefits, services, programs or facilities to some or all members of the
public or with the consent of the card owner.
The purposes of the Bill are also relevant for the operation of the offence provisions
such as clause 45, which deals with prohibitions on unauthorised demands for
individuals to produce their card for identity purposes.
By tying the prohibition in clause 45 to the purposes of the Act, the legislation is
intended to give effect to the Government's policy that the access card is not a national
identity card and cannot be required to be produced by anyone except for the purposes
of the Bill or to establish concession status.
Accordingly, conduct engaged in by authorised persons for the purposes of the Act will
be excluded from the relevant offence (see for example clause 48 where it is not an
offence for an authorised person to change information in the Commonwealth's area of
the chip in an access card if it is done for the purposes of the Act). Uses that go beyond
these statutory purposes are not authorised by the Bill. For example, an authorised
person who copied a person's access card number for a reason that was not connected
with the provision of Commonwealth benefits would commit an offence under clause
57, unless that copying was with the card owner's written consent or was excused
under section 10.5 of the Criminal Code Act 1995 (which would enable copying if that
was justified or excused by or under a law).
It should be noted that while most Commonwealth benefits are provided under a law of
the Commonwealth, there are some programs, services or facilities that may be
delivered administratively under the Commonwealth's executive power. Clause 7 is
intended to capture such programs.
Clause 8 - Administration of this Act to accord with Australian Government
policy
Clause 8 authorises the Minister to issue written policy statements setting out the
Australian Government's policy in relation to the administration of the Bill. This
clause is based on a similar provision in section 9 of the Social Security
(Administration) Act 1999.
Given that the access card is a new initiative for the effective delivery of
Commonwealth benefits, it is important that the Government's expectations in relation
to how the Bill will be administered are clearly spelt out to those charged with
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administering the Bill (this includes not only the relevant Secretaries and CEOs of
Human Services agencies but all delegates, sub-delegates and authorised persons).
This clause does not authorise the Minister to issue policy statements that would be
inconsistent with the Act or that would require officers administering the Act to make
particular decisions. The provision is intended to allow the Minister to provide general
high level guidance to the Secretary (and delegates) about matters relevant to the
administration of the Bill.
As policy statements will need to be tabled in both Houses of Parliament (see
subclause 8(3)) the Minister's policy statements will also be available to the public.
Policy statements cannot be inconsistent with the provisions of the Bill and cannot
require delegates to make particular decisions in a case (rather the policy must be taken
into account in making a decision). Parliamentary oversight provided by subclause (3)
provides transparency in relation to policy statements.
As policy statements are administrative documents, subclause 8(6) is declaratory of the
legal position that policy statements are not legislative instruments.
Division 5 - Application of this Act
Clause 9 - This Act binds the Crown
This clause is a standard provision to make it clear that the Act binds the Crown in all
its capacities, except in right of Norfolk Island (see clause 10).
In accordance with ordinary practice, in the event that the Crown contravenes a
provision of the Bill it is not liable to be prosecuted for an offence.
Clause 10 - Extension to external Territories
The Bill extends to every external Territory other than Norfolk Island.
However, the offence provisions do extend to Norfolk Island.
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Part 2 - Registration
Division 1 - What this Part is about
Clause 11 - What this Part is about
This clause sets out in broad terms what Part 2 of the Bill is about.
Division 2 - Getting registered
Clause 12 - Are you eligible to be registered?
As part of the initial process for obtaining an access card, individuals will first need to
be registered. This clause sets out the eligibility requirements for registration.
First, only individuals will be able to be issued with an access card. An access card will
not be issued to companies, partnerships or other legal entities (whether corporate or
not). Accordingly, an eligibility requirement for registration is that applicants must be
individuals.
Secondly, in order to be eligible to be registered, an individual must be eligible or
qualified for a Commonwealth benefit as defined in clause 5. If a person is not eligible
or qualified for a Commonwealth benefit then they will not be entitled to be registered.
It should be noted that to qualify under this criterion an individual does not need to be
receiving a Commonwealth benefit. It is sufficient if the person is eligible or qualified
for any Commonwealth benefit. This would include satisfying the current eligibility
requirements for Medicare.
Paragraph (b) of this clause makes it clear that a person is not entitled to be registered
if he or she is already registered. This clause prevents duplication of registrations.
Clause 13 - Applying for registration
This clause sets out the process for a person to apply to be registered. Under the Bill,
registration is an essential precondition to obtaining an access card.
An application must generally be in writing. The form of the application will be
approved by the Secretary.
In approving an application form, the Secretary will be required to consult with the
Privacy Commissioner and take into account any comments made by the Privacy
Commissioner. This requirement will impose a duty on the Secretary to ensure that this
consultation occurs. A failure to comply with this requirement will not affect the
validity of the approval of the application form. This will avoid the possibility that
customers may be invalidly registered (and therefore not entitled to an access card and
benefits) through no fault of their own.
Applications will be able to be made at a variety of locations and offices throughout
Australia, including existing Medicare and Centrelink offices.
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Although issues relating to dependants and carers have not been dealt with in this Bill,
clause 13 makes it clear that a person may apply for registration on behalf of another
person. Accordingly, parents and other carers may apply for registration for their
children and carers may apply on behalf of those they care for. Detailed provisions in
relation to dependants will be included in subsequent legislation.
Because the registration process is intended to be a robust and comprehensive process
with substantially improved proof of identity arrangements, applicants wishing to be
registered will need to provide documents or information relating to their identity. The
documents that will be required will be specified by the Secretary but will be
documents that establish the person's identity and the use of that identity in the
community. These will include documents such as birth certificates, passports,
immigration documents, drivers' licences and similar documents.
As a primary objective of the new access card is to prevent fraud, it is essential that the
registration process is, and is seen to be, thorough, robust and secure. Without a
comprehensive proof of identity process during the registration process, it would not be
possible to ensure a high level of confidence in the identity of card recipients. This
would defeat one of the major objectives of the access card as a fraud preventative
measure. Verification is intended to ensure that forged or duplicate documents are not
used to fraudulently register people who are not eligible for an access card.
The Secretary will be able to request an applicant to provide additional documents or
information to assist the Secretary to be satisfied as to the applicant's identity
(subclause 13(4)), such as in circumstances where the documents provided by an
applicant are insufficient to reliably establish identity. If an applicant does not provide
the additional documents or information, the Secretary may not be able to be satisfied
about an individual's identity and will therefore not be able to register the individual
(see paragraph (c) of clause 14).
In addition, the Secretary may request that an applicant provide additional information
to assist the Secretary to be satisfied that the applicant is eligible to be registered or
that is required to be included on the Register.
Of course, there will be cases where some individuals (e.g. individuals living in remote
Australia, homeless persons, or people at risk) may not be able to provide the types of
documents required to process their application. To deal with these types of situations,
paragraph (1)(b) of this clause allows the Secretary to specify an alternative process to
deal with such special or exceptional circumstances.
The note to subclause (2) clarifies that in determining documents that may be required
as to a person's identity, the Secretary must take into account any identity guidelines
that are in force under clause 66. A similar note to subclause (4) highlights the fact that
if the Secretary considers there may be some doubt about an individual's identity and
the Secretary requires further information or documents to establish that identity, then
the Secretary must take into account any identity guidelines that are in force under
clause 66.
Identity guidelines issued under clause 66 are legislative instruments and will be
required to be registered in the Federal Register of Legislative Instruments. They will
18
also need to be tabled in both Houses of Parliament and will be subject to disallowance
by either House of Parliament.
Clause 14 - When the Secretary must register you
This clause provides that once a person has applied for registration and provided all the
relevant proof of identity documents, the Secretary must register the person if the
person is eligible to be registered and the Secretary is satisfied about the person's
identity.
It is critical to the integrity of the registration process and the access card that the
identity of an individual is able to be verified and that the individual is who they say
they are. Accordingly, the Secretary will only be able to register an individual if
satisfied as to their identity. The verification process is aimed at ensuring that the
documents provided by an individual are checked with the issuing authority and
verified as being accurate.
The note to this clause clarifies that before being satisfied about a person's identity, the
Secretary must take into account any identity guidelines in force under clause 66.
Identity guidelines issued under clause 66 are legislative instruments and will be
required to be registered in the Federal Register of Legislative Instruments. They will
also need to be tabled in both Houses of Parliament and will be subject to disallowance
by either House of Parliament.
Clause 15 - When registration happens
This clause makes it clear when a person is taken to be registered.
Registration will occur when the Secretary enters an applicant's legal name on the
Register (unless the applicant is exempted from providing their legal name under
clause 65 - in which case the applicant's preferred name will be entered) and enters the
date of effect of registration on the Register as well.
The date of effect of registration will assume greater importance in 2010 as it is the
Government's announced intention that the access card and registration will be
necessary for a person to be able to obtain relevant Commonwealth benefits.
Accordingly, in some cases it will be critical to know the exact time a person can be
said to be registered so that they can start receiving benefits.
To provide sufficient flexibility to deal with individual cases, subclause (2) allows the
date of effect of registration to be a date before a person's application was formally
made to the Secretary. The Bill is not intended to exclude individuals from benefits
because of minor timing discrepancies. For the avoidance of doubt, subclause (2) will
allow the Secretary to deal with deserving and exceptional cases in a way that does not
disadvantage them.
Under subclause (3), the Secretary is required to notify a person in writing once they
are registered.
19
Division 3 - The Register
Clause 16 - The Register
This clause provides for the establishment of the Register. The Register will be
established and maintained by the Secretary. The responsibility for establishing the
Register will not be capable of delegation by the Secretary (see subclause 70(2)).
It is proposed that the Register will be kept in electronic form. Clause 16 has been
drafted in a way that will allow the form of the Register to keep pace with future
technological developments.
As the Register is administrative in character, subclause 16(3) is declaratory of the
legal position that the Register is not a legislative instrument.
Clause 17 - Information on the Register
Clause 17 sets out the information that will be included on the Register.
The Register will be separate from the databases maintained by the various delivery
agencies such as Centrelink, Medicare Australia and the Department of Veterans'
Affairs and the other Human Services agencies. There will be no centralised database
holding all of an individual's information in one place. Existing agency records will
remain with the relevant agency - where they are now.
The information (other than optional information) that will be included on the Register
is considered necessary for the Register in order to facilitate the effective
implementation of the access card system and the delivery of Commonwealth benefits
only to those who are properly entitled to them. The information in the Register will be
verified and will be able to be checked against cards that are presented by individuals
when they claim benefits or seek services. This will be a significant check against
attempts by individuals to fraudulently obtain benefits.
The Register will contain the following information in relation to individuals who are
registered.
Information on the Register
Item Topic The Secretary must include this information on the
Register:
(a) your legal name, unless you are exempted from this
1 name
requirement (see clause 65);
(b) if you are so exempted--your preferred name;
(c) if you are not so exempted, your preferred name is
different from your legal name and you request the
Secretary to include your preferred name on the
Register--that preferred name;
(d) if you have another name and either you request the
Secretary to include that name on the Register or that
name is known to the Secretary--that other name;
(e) if you are entitled to be known by the title "Mr",
20
Information on the Register
Item Topic The Secretary must include this information on the
Register:
"Mrs", "Ms", "Miss" or "Dr" and you request the
Secretary to include that title on the Register--that
title;
(f) if you have been awarded an honour under the
Australian or British honours system and you request
the Secretary to include that honour on the Register--
that honour;
2 birth your date of birth, unless the Secretary determines that it
need not be included on the Register;
(a) if you are an Australian citizen--that fact;
3 citizenship or
residency (b) if you are an Australian resident--that fact, and such
other information about that fact as is determined by
the Secretary;
(c) if you are a visitor to Australia to whom an
international agreement relates, being an agreement
made between Australia and a foreign country under
subsection 7(1) of the Health Insurance Act 1973--
that fact, and such other information about that fact as
is determined by the Secretary;
(a) if you are an Aboriginal person (within the meaning of
4 Indigenous
the Aboriginal and Torres Strait Islander Act 2005)
status
and you request the Secretary to include that fact on
the Register--that fact;
(b) if you are a Torres Strait Islander (within the meaning
of the Aboriginal and Torres Strait Islander Act 2005)
and you request the Secretary to include that fact on
the Register--that fact;
5 sex your sex;
(a) if you have a residential address--that address;
6 contact details
(b) if you have a postal address--that address;
(c) if you request the Secretary to have your email address
included on the Register--that address;
(d) if you request the Secretary to have your phone
number included on the Register--that number;
(e) if you are visually impaired and you request the
Secretary to include on the Register information about
a reasonable manner or format in which you would
prefer correspondence to be provided to you--that
information;
7 benefit cards if you hold a benefit card--such information about that
card as is determined by the Secretary;
(a) the date of effect of your registration;
8 registration
status (b) if your registration has been suspended or cancelled--
that fact;
(c) if the Secretary determines that your proof of identity
is full--the word "full";
(d) if the Secretary determines that your proof of identity
is interim--the word "interim";
9 access card if you own an access card--the following information:
21
Information on the Register
Item Topic The Secretary must include this information on the
Register:
(except DVA (a) your access card number;
information) (b) the date your access card was issued;
(c) the expiry date of your access card;
(d) if there is a personal identification number for your
access card--that number, protected by encryption or
other technological protection measure;
(e) if there is other information (for example, a password)
for authenticating your identity--that information,
protected by encryption or other technological
protection measure;
(f) if your photograph is on the surface of your access
card--that photograph and a numerical template of
you derived from that photograph;
(g) if your digitised signature is on the surface of your
access card--that signature;
(h) if your access card has expired, or is deactivated,
suspended or cancelled--that fact;
(i) if you hold a benefit card (other than a DVA Gold
Card), the Secretary determined that a colour is
associated with that card and you request the Secretary
to have that colour for your access card--that colour;
(j) if your date of birth is on the surface of your access
card--that fact;
(k) if the word "Blind" is on the surface of your access
card--that fact;
10 access card if you own an access card and you are a DVA
(DVA individual--the following information:
information) (a) if the acronym "TPI" is on the surface of your access
card--that fact;
(b) if the word "Blind" is on the surface of your access
card--that fact;
(c) if the acronym "POW" is on the surface of your access
card--that fact;
(d) if the acronym "EDA" is on the surface of your access
card--that fact;
(e) if the phrase "war widow" or "war widower" is on the
surface of your access card--that fact;
(f) if the phrase "DVA dependant" is on the surface of
your access card--that fact;
(g) if the phrase "DVA White Card holder" is on the
surface of your access card--that fact;
(h) if you hold a DVA Gold Card and you request the
Secretary not to have gold as the colour of your access
card--that request;
(a) if a special rate of pension under section 24 of the
11 DVA
Veterans' Entitlements Act 1986 is payable to you
information
because you are totally and permanently
incapacitated--the acronym "TPI";
22
Information on the Register
Item Topic The Secretary must include this information on the
Register:
(b) if a special rate of pension under subsection 24(3) of
the Veterans' Entitlements Act 1986 is payable to you
because you are blinded in both eyes--the word
"Blind";
(c) if you are a former prisoner of war--the acronym
"POW";
(d) if a pension at the rate specified by subsection 22(4) of
the Veterans' Entitlements Act 1986 is payable to you
because you are entitled to extreme disablement
adjustment--the acronym "EDA";
(e) if you are a war widow or war widower--the phrase
"war widow" or "war widower" (as the case requires);
(f) if you are a DVA dependant--the phrase "DVA
dependant";
(g) if you hold a DVA White Card--the phrase "DVA
White Card holder";
(h) if you are a DVA individual, you are entitled to be
known by a rank as a result of your military service
and you request the Secretary to include that rank on
the Register--that rank;
(a) if the Secretary determines that a copy of a document
12 documents
you produced in relation to proving your identity is to
produced to
be included on the Register--that copy;
prove identity
(b) if the Secretary determines that information about a
document you produced in relation to proving your
identity is to be included on the Register--that
information;
13 statements if the Privacy Act 1988, the Freedom of Information Act
required by 1982 or other Commonwealth law requires a statement to
legislation be included on the Register--that statement;
14 participating if you have a relationship with any of the participating
agency agencies--a flag identifying that fact;
15 emergency if you have an emergency payment number--that
payment number;
number
16 death if you die--the date of the death;
(a) such other technical or administrative information
17 other
that:
information
(i) does not expressly identify you by name or
other personal identifiers; and
(ii) is determined by the Secretary; and
(iii) is reasonably necessary for the administration
of the Register or your access card;
(b) such other information that is determined, by
legislative instrument, by the Minister and that is for
the purposes of this Act.
Item 15 provides for the inclusion of an emergency payment number on the Register.
The purpose of the number is to provide the Australian Government with a means of
23
quickly providing emergency payments to individuals in the event of a disaster. The
emergency payment number does not include an individual's personal banking details.
The emergency payment number will be the key that will allow individuals to access
money provided by the Australian Government for emergency relief. The emergency
payment number will enable individuals to access payments from an Australian
Government account in appropriate circumstances. It will operate in a similar way to a
debit card - except that the account to be debited will be a Government account set up
specifically to provide emergency payments to affected individuals.
Under item 17(a), the Secretary will be able to add technical or administrative
information to the Register (for example, audit logs or the serial number of the chip).
Item 17(a) makes it clear that under this item the Secretary is not permitted to include
any personal information that could identify a person by name or other personal
identifier on the Register. Additionally, even the technical or administrative
information that may be included under this item must be reasonably necessary for the
administration of the Register or an access card.
As determinations by the Secretary under items 2, 3, 7, 8, 9, 12 and 17(a) only relate to
technical or administrative matters, subclause 17(2) is declaratory of the legal position
that such determinations are not legislative instruments.
Under item 17(b), the Minister will be able to include other information in the Register
- but only if that information is necessary for the purposes of the Bill. This restriction is
intended to ensure that only limited relevant information will be able to included under
this provision - ie the information will need to be relevant to the provision of benefits,
services, programs or facilities involving a participating agency.
As the information that may be determined by the Minister is not limited to technical
or administrative information, a determination by the Minister must be issued as a
legislative instrument. Accordingly, it will be required to be registered in the Federal
Register of Legislative Instruments. It will also need to be tabled in both Houses of
Parliament and will be subject to Parliamentary scrutiny (i.e. it will be subject to
disallowance by either House of Parliament). It is considered that this mechanism will
provide the necessary public and Parliamentary scrutiny and oversight of any
information that is proposed to be added under this provision.
Clause 18 - When the Secretary may not include information on the Register
This clause makes it clear that the Secretary must not include particular information on
the Register in specific circumstances.
Paragraph 18(1)(a) provides that the Secretary must not include particular information
on the Register in relation to a person if the Secretary considers it would be
inappropriate to do so because the person is included in the National Witness
Protection Program. In such circumstances it might be detrimental to the safety of the
person or their family if particular information was included on the Register.
The Secretary is also not required to include information on the Register where to do
so would be inconsistent with a Commonwealth law.
24
Subclauses 18(2) and (3) deal with situations where a person wants to include a
prohibited or inappropriate name on the Register as their preferred name. Under
subclause 18(2), the Secretary will not be able to include a person's preferred name on
the Register if the use of that name is prohibited by a law of the Commonwealth, or by
a law of a State or Territory.
Subclause 18(3) allows the Secretary to refuse to include a name on the Register if the
name is inappropriate. An inappropriate name is defined in clause 5 to mean a name
that is:
(a) is obscene or offensive, or
(b) could not practicably be established by repute or usage:
(i) because it is too long, or
(ii) because it consists of or includes symbols without phonetic
significance, or
(iii) for some other reason, or
(c) includes or resembles an official title or rank, or
(d) is contrary to the public interest for some other reason.
This definition is based on a similar provision in the NSW Births, Deaths and
Marriages Registration Act 1995. Similar provisions apply in other States and
Territories.
Clause 19 - Temporary information on the Register
This clause deals with a privacy enhancing feature of the access card system.
Information may be held temporarily on the Register until it is transferred to the
Commonwealth's area of the chip in the card owner's card when he or she docks the
card at a relevant agency. Once the card is docked and the information is transferred to
the chip in the card, the information will cease to be on the Register.
This clause sets out the information that will be affected in this way. It will apply,
where applicable, to a person's medicare number, their Reciprocal Health Care Card
number, their DVA file number (for DVA individuals only) and the World Health
Organisation's International Classification of Diseases code (only for individuals who
hold a DVA White Card). If a card is lost or stolen the information will be able to be
accessed from the DVA or Human Services agency and again pushed through to the
chip of the card.
Clause 20 - Register not to contain any other information
The purpose of this clause is to make it clear that the Register will only contain the
information that is specified in clauses 17 and 19. No other information will be
permitted to be included on the Register.
25
Part 3 - The access card
Division 1 - What this Part is about
Clause 21 - What this Part is about
This clause provides a broad overview of what Part 3 of the Bill is about.
Division 2 - Getting an access card
Clause 22 - Are you eligible for an access card?
This clause sets out the eligibility requirements for an access card.
A prerequisite for an access card is that a person must be registered. This is intended to
ensure that only persons whose identity has been verified will be able to obtain an
access card. This is a critical element in ensuring that the access card will provide
enhanced security and will be a significant measure in combating fraud against the
public revenue.
This Bill does not change an individual's eligibility to receive government health and
social services. Special circumstances will need to be addressed for some children
under 18 years of age who may require an access card. To cater for these special
circumstances, clause 65 gives the Minister and the Secretary (and the DVA Minister
and the DVA Secretary in relation to DVA individuals) the power to exempt a child
from the age requirement in appropriate circumstances (there will be circumstances
where a person under 18 years of age will require their own access card, e.g. for
medical reasons). The Minister will be able to exempt classes of individuals and the
Secretary will be able to exempt specific individuals. It is intended that there will be
internal administrative policy guidelines to provide guidance to delegates making
decisions regarding exemptions. Under the class exemption the Minister will be able to
exempt persons under 18 years on the same basis that persons under 18 years are
currently able to receive a Medicare card.
Paragraph (c) of clause 22 makes it clear that a person is not eligible to apply for an
access card if he or she already is the owner of an access card that is in force. It would
be inconsistent with the policy underlying the Bill for individuals to own more than
one valid access card in their name at any particular time as this would increase the
risk of fraud.
Clause 23 - Applying for an access card
As mentioned in relation to clause 13, the first step in the process of obtaining an
access card will require a person to be registered. Not all persons who are registered
will be eligible to receive an access card at the time of registration. For example,
newborns will generally not be entitled to their own access card. Rather they may be
included on their parents' cards (the issue of dependants and carers will be more
specifically addressed in subsequent legislation). Children will need to be registered in
order for parents to obtain Commonwealth benefits in respect of their children.
26
The next step in the process of obtaining an access card will be for a person to apply
for an access card. In most cases this application will be made at the same time a
person applies to be registered. In the case of children there may be a significant time
gap between when they are registered and when they will be eligible for an access card
in their own right. In such cases, a registered child will need to make a separate
application for an access card at the time they become eligible for their own access
card.
An application must generally be in writing. The form of the application will be
approved by the Secretary.
In approving the application form, the Secretary will be required to consult with the
Privacy Commissioner and take into account any comments made by the Privacy
Commissioner. This requirement will impose a duty on the Secretary to ensure that this
consultation occurs. A failure to comply with this requirement will not affect the
validity of the approval of the application form. This will avoid the possibility that
customers may be issued with an access card that may be invalid (and therefore not be
entitled to benefits) through no fault of their own.
Applications will be able to be made at a variety of locations and offices throughout
Australia, including existing Medicare and Centrelink offices.
Although issues relating to dependants and carers are not dealt with in the Bill, clause
23 provides that a person may apply for an access card on behalf of another person.
Accordingly, parents and other carers will be able to apply for an access card for their
children and carers may apply on behalf of those they care for, provided dependants
are otherwise eligible to apply in accordance with clause 22. Detailed provisions
relating to dependants will be included in subsequent legislation.
Because the process for obtaining an access card is intended to be a robust and
comprehensive process with substantially improved proof of identity arrangements,
applicants wishing to obtain an access card will need to provide documents or
information relating to their identity. The documents that will be required will be
specified by the Secretary but will be documents that establish the person's identity
and the use of that identity in the community. These will include documents such as
birth certificates, passports, drivers' licences and similar documents. In most cases all
these documents will be provided at the same time as the person applies for
registration.
As a primary objective of the access card is to prevent fraud, it is essential that the
application process is, and is seen to be, thorough and secure. Without a
comprehensive proof of identity process during the application process, it would not be
possible to ensure a high level of confidence in the identity of card recipients. This
would clearly defeat one of the major platforms for the access card as a fraud
preventative measure. Verification is intended to ensure that forged or duplicate
documents are not used to fraudulently register people who have no entitlement to an
access card.
In situations where the documents provided by an applicant are insufficient to reliably
establish identity, the Secretary will be able to request an applicant to provide
27
additional documents or information needed for the Secretary to be satisfied as to the
applicant's identity (subclause 23(2) and (4)). If an applicant does not provide the
additional documents or information, the Secretary may not be able to be satisfied
about an individual's identity and will therefore not be able to issue an access card to
the individual (see paragraph (1)(f) of clause 24).
It is inevitable that there will be cases where some individuals (e.g. individuals living
in remote Australia, homeless persons or people at risk) may not be able to provide the
types of documents required in the application form. To deal with these types of
situations, paragraph (1)(b) of this clause allows the Secretary to specify an alternative
application process to deal with such special or exceptional circumstances.
The notes in this clause highlight the fact that when making decisions in relation to
identity under this clause the Secretary must take into account any identity guidelines
in force under clause 66. Identity guidelines issued under clause 66 are legislative
instruments and will be required to be registered in the Federal Register of Legislative
Instruments. They will also need to be tabled in both Houses of Parliament and will be
subject to disallowance by either House of Parliament.
Clause 24 - When the Secretary must issue you an access card
This clause sets out the process by which a person will be issued with an access card.
A person must first be eligible and must have applied for the issue of a card (see
clauses 22 and 23).
In order to ensure a robust proof of identity process, persons wanting an access card
will need to attend an interview, will need to have their photograph taken and will also
have to provide their signature. All three of these requirements are considered critically
important from a proof of identity perspective.
By an applicant attending an interview, Commonwealth officials will be able to
physically sight the applicant and discuss the documents provided by the applicant.
The taking of a photograph will significantly reduce the opportunity for the same
person to apply for cards under false identities.
The signature that will be provided will add a positive security enhancement to the
process, especially for claims sent for payment by mail, rather than presented in
person.
There may be cases where it would not be appropriate for a person to attend an
interview or have a photograph taken. For example, there may be cases where a person
living in a remote community may not be able to attend an interview or a person may
be physically incapable of doing so. Similarly, there may be a valid basis where it
would be emotionally upsetting for a person to have to submit to a photograph (e.g. a
person may be severely disfigured as a result of an accident). Provision has been made
for exemption from these requirements in special circumstances (see clause 65 dealing
with exemptions). Administrative guidelines will apply for deciding when an
exemption should be granted.
Similar considerations apply to the requirement to provide a signature.
28
Paragraph (1)(g) of clause 24 provides that other eligibility requirements may be
determined by the Minister by legislative instrument. Although no additional
requirements are specifically contemplated at this stage, this mechanism has been
included to deal with unusual circumstances that may arise in the future. As any such
requirements will need to be determined by legislative instrument, they will need to be
registered in the Federal Register of Legislative Instruments, will need to be tabled in
Parliament and will be subject to disallowance by either House of Parliament.
The note to this clause clarifies that before being satisfied about a person's identity, the
Secretary must take into account any identity guidelines in force under clause 66.
Identity guidelines issued under clause 66 are legislative instruments and will be
required to be registered in the Federal Register of Legislative Instruments. They will
also need to be tabled in both Houses of Parliament and will be subject to disallowance
by either House of Parliament.
An access card is an administrative document issued to individuals. Subclause 24(2) is
declaratory of the legal position that access cards are not legislative instruments.
Clause 25 - When the Secretary issues you your access card
Once the Secretary is satisfied of an applicant's identity and the applicant has
completed an interview, had their photograph taken and provided a signature (unless
exempted from any of these requirements under clause 65) an access card will be
issued to the person.
Clause 25 specifies the time at which the card is to be taken to be issued. Effectively,
the card is issued once the card is sent to the individual or the individual collects the
card. It is at this time that ownership in the card will vest in the individual (see clause
37(2)).
Clause 26 - Period of validity of your access card
An individual's access card remains in force for the period that is set out on the card,
up to a maximum period of 10 years. Expiry dates on cards will be staggered for
logistical administrative purposes.
Division 3 - Name and form of access cards
Clause 27 - Name, symbol and form of an access card
It is anticipated that the new access card will be a smartcard similar in size and shape
to a normal credit card. It will contain an embedded microchip which will store
information in a secure and safe manner.
Subclause 27(4) has been drafted in way which will not prevent the application of
future technology which may be developed and which may provide additional security
benefits to the card. The clause allows the Minister to determine (in writing) the form
of the card and the technology that is to be used.
29
The access card will initially be known as the Health and Social Services Access Card.
Under subclause (1) the Minister will be able to determine a different name for the
access card as well as a symbol for the card. Where the Minister does so, the Minister
will be required (subclause (3)) to publish a notice of the determination in a newspaper
circulating in each State as well as the Australian Capital Territory and the Northern
Territory.
Given that the Commonwealth will acquire exclusive ownership of the name and
symbol (see clause 28), and it will be an offence to use the name and symbol without
permission (see clause 63), it is important that the public is aware of any new name and
symbol.
A determination by the Minister of the name, symbol and form of the access card is an
administrative instrument. Subclause 27(5) is declaratory of the legal position that such
a determination is not a legislative instrument.
The note to clause 27 is intended to clarify that the Minister can make more than one
determination under subclauses (1), (2) or (4).
Clause 28 - Commonwealth's acquisition of access card name and symbols
Given the importance of the access card to the effective delivery of Commonwealth
benefits and as a fraud preventative measure, the Government believes that the name of
the card and symbol should be protected and not be available for use in private
business. The use of the name in private business could cause significant confusion to
consumers, degrade the integrity of the card and could facilitate the manufacture of
misleading cards. For these reasons, the Government has decided that the name of the
card and symbol should vest exclusively in the Commonwealth.
This clause provides for that to occur.
The names that are protected are:
· Health and Social Services Access Card; and
· if the Minister determines another name under clause 27 - that other
name.
The name Health and Social Services Access Card will be protected (on the
commencement of the Bill) on and from 13 December 2006 (which is the date of
public release of the Exposure Draft of the Bill). This is considered necessary in order
to ensure that individuals do not try to use or acquire the name from the date it was
publicly announced in the Exposure Draft.
If the Minister subsequently determines a new name or symbol for the card under
clause 27, that new name or symbol will be protected from the day the Minister
determines the new name or symbol. If the Minister determines a name under clause
27 and subsequently determines a further name, both names will be protected.
If the exclusive vesting of the name in the Commonwealth results in an acquisition of
property, then the Commonwealth may be required to pay compensation. This aspect
of the name acquisition is dealt with in clause 73, which provides that the
30
Commonwealth is liable to pay a reasonable amount of compensation to the person
from whom the name was acquired.
Where the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court of Australia
for the recovery from the Commonwealth of such reasonable amount of compensation
as the court determines.
Clause 28 should be read in conjunction with clause 63, which makes it an offence for
a person to use the protected names or symbols in business.
Division 4 - Information on your access card
Clause 29 - Information on your access card
Information on an individual's access card will consist of:
· information that is on the surface of the card; and
· information that is in the chip of the card.
Clause 30 - Information on the surface of your access card
This clause sets out the information that will be visible on the surface of an access
card.
The information in items 1, 2, 3, 4 and 5 must be included on the surface of the card.
The information in items 6, 7 and 8 will only be included at the request of the card
owner.
Information on the surface of your access card
Item Topic The Secretary must include this information
on the surface of your access card:
(a) if paragraph (b) does not apply--your legal name;
1 name
(b) if you are exempted under clause 65 from providing
your legal name, or your preferred name is different
from your legal name and you request the Secretary to
include that name on the surface of your access card--
your preferred name;
2 card number your access card number;
3 card expiry the expiry date of your access card;
date
4 photograph if your photograph was taken in accordance with
paragraph 24(1)(d)--that photograph;
5 signature if you provided your signature in accordance with
paragraph 24(1)(e)--that signature digitised;
6 date of birth if you request the Secretary to include your date of birth
on the surface of your access card--that date;
(a) if a special rate of pension under section 24 of the
7 DVA
Veterans' Entitlements Act 1986 is payable to you and
information
you request the Secretary to include on the surface of
31
Information on the surface of your access card
Item Topic The Secretary must include this information
on the surface of your access card:
your access card information that you are totally and
permanently incapacitated--the acronym "TPI";
(b) if a special rate of pension under subsection 24(3) of the
Veterans' Entitlements Act 1986 is payable to you
because you are blinded in both eyes and you request
the Secretary to include that information on the surface
of your access card--the word "Blind";
(c) if you are a former prisoner of war and you request the
Secretary to include that information on the surface of
your access card--the acronym "POW";
(d) if a pension at the rate specified by subsection 22(4) of
the Veterans' Entitlements Act 1986 is payable to you
and you request the Secretary to include on the surface
of your access card information that you are entitled to
extreme disablement adjustment--the acronym "EDA";
(e) if you are a war widow or war widower and you request
the Secretary to include that information on the surface
of your access card--the phrase "war widow" or "war
widower" (as the case requires);
(f) if you are a DVA dependant and you request the
Secretary to include that information on the surface of
your access card--the phrase "DVA dependant";
(g) if you hold a DVA White Card and you request the
Secretary to include that information on the surface of
your access card--the phrase "DVA White Card
holder";
8 Blind if disability support pension on the basis of blindness is
disability payable to you under section 95 of the Social Security
support Act 1991 and you request the Secretary to include that
pensioners information on the surface of your access card--the
word "Blind".
The DVA information is relevant to DVA individuals who are currently recipients of
Gold, Orange and White Cards issued by the Department of Veterans' Affairs. This
information will only be included on the surface of cards of veterans and only if they
request that it is included.
Rationale for including matters on the surface of the access card
Use of photo
A photo is essential to the integrity and success of the new scheme. A photo will allow
a person to simply and quickly prove who they are when accessing Commonwealth
benefits at frontline service delivery points. It will also assist in correct identification
when customers undertake transactions with other service providers, potentially
including doctors and pharmacists. The inclusion of a photograph on the card will
significantly enhance the identity security elements of the card, protecting the card
owner's identity and reducing opportunities for fraud.
32
One of the platforms of the new scheme is a strengthened proof of identity mechanism
that has the capacity to authenticate users, identify their entitlements (such as
concession status) and ensure they access the right services and benefits. A photo will
be a major factor in preventing fraudulent health and social service transactions and
detecting fraudulent activities.
Reliable proof of identity and the improved access control this permits are also
essential components of any effective system to protect personal information held in
large databases.
The verification of existing cards depends heavily on visual checks of paper, cardboard
and simple plastic cards. Verification of these cards is becoming less reliable. The
absence of a photograph on existing cards is a limitation on identity verification.
Name
The front of the card will contain the card owner's name. Card owners will be able to
include their preferred name on the card. In order to ensure the integrity of the system,
the chip in the card will also include the card owner's legal name (protected by the
personal identification number of the person's access card) as verified by the
documents produced during the registration process (e.g. the name on the birth
certificate).
On the basis that it has been decided that a person can choose to include his or her
preferred name on the card rather than their legal name, the Bill authorises the
Secretary to refuse to include an individual's preferred name on an access card if the
Secretary is satisfied that the use of that name is prohibited by a law of the
Commonwealth, a State or a Territory.
Additionally, the Secretary may refuse to include a name on an access card if the name
is inappropriate. An inappropriate name is defined in clause 5 to mean a name that is:
(a) is obscene or offensive, or
(b) could not practicably be established by repute or usage:
(i) because it is too long, or
(ii) because it consists of or includes symbols without phonetic
significance, or
(iii) for some other reason, or
(c) includes or resembles an official title or rank, or
(d) is contrary to the public interest for some other reason.
This definition is based on a similar provision in the NSW Births, Deaths and
Marriages Registration Act 1995. Similar provisions apply in other States and
Territories
33
Signature
The Australian Government has consulted widely in its assessment on the value of a
digitised signature. It has decided that a digitised signature on the card provides greater
utility and security for the cardholder.
A digitised copy of a card owner's signature will appear on the surface of the card and
in the chip. This is also being included as an added security device and will support
customer authentication for claiming benefits when the customer is not present.
Specifically, this occurs when customers mail-in claim forms to a participating agency.
The inclusion of a signature will make it easier to cross check signatures on the 50
million forms that are completed every year at Centrelink, Medicare and other offices
across Government.
Card number
The Bill also provides that the card number will be included on the surface of the card.
The Government considers that a number is necessary for customer convenience.
A card number is integral to the business operations of the Department of Veterans'
Affairs, Centrelink and Medicare Australia, their customers and third parties. The
number provides the means for service delivery, particularly for telephone and internet
based services.
An easily quoted number is required for on-line and call centre operations.
If the number were to be eliminated from the card it would have several disadvantages.
First, clients who call agencies by telephone would be required to identify themselves
by other means using multiple references. This would make client interactions
lengthier and more complicated and inconvenient for agencies and their customers than
they need to be.
Secondly, some providers would be required to quote an appropriate reference number
in order to charge for and be reimbursed for services provided.
Thirdly, some clients may have difficulty remembering numbers without these being
easily visible.
Fourthly, systems may fail and if they do, the processing of transactions will be
compromised in the absence of a visible card number.
Finally, a visible number will facilitate a customer's individual access to check their
own records.
The Government believes that the access card number is an additional protection for
the consumer. The number will be the only unique number printed on the card.
34
Birth Date
Some individuals may want to include their birth date on the surface of the card. The
Bill will allow individuals to include their birth date if they choose to do so. Otherwise,
the card surface will not include details of an individual's date of birth.
Expiry date
The surface of the card will contain the card's expiry date. Listing the expiry date on
the access card provides consumers and service providers assurance that the card being
presented is a valid card. It also serves as a reminder to consumers when they are
required to get a new card.
DVA information
As a mark of respect for Australian veterans, the Government believes that they should
be able to choose to include on their cards particular information relating to their
status. This has been provided for in the Bill.
Clause 31 - Your name
This clause deals with situations where the preferred name which an individual has
sought to include on their access card is prohibited or inappropriate.
This clause will allow the Secretary to refuse to include such a name on the
individual's access card.
Under subclause (1), the Secretary will not be able to include a person's preferred
name on the Register if the use of that name is prohibited by a law of the
Commonwealth, or by a law of a State or Territory.
Subclause (2) allows the Secretary to refuse to include a person's preferred name on
the surface of their access card if the name is inappropriate. An inappropriate name is
defined in clause 5 to mean a name that is:
(a) is obscene or offensive, or
(b) could not practicably be established by repute or usage:
(i) because it is too long, or
(ii) because it consists of or includes symbols without phonetic
significance, or
(iii) for some other reason, or
(c) includes or resembles an official title or rank, or
(d) is contrary to the public interest for some other reason.
This definition is based on a similar provision in the NSW Births, Deaths and
Marriages Registration Act 1995.
Given that the access card is physically limited in size and must contain specific
information, subclause (3) has been included to ensure that where a person's legal or
preferred name is too long to fit reasonably on the surface of the card, the Secretary
35
can abbreviate the name so that it can fit reasonably on the card. The unabbreviated
name will be included on the chip in the card and in the Register.
Clause 32 - Access card surface not to contain any other information
The purpose of this clause is to make it clear that the surface of the card will only
contain the information that is specified in clause 30. No other information will be
permitted to be included on the surface of the card. Any additional information to be
included on the surface of the card will require an amendment to the legislation.
Clause 33 - Information on the chip in your access card
As the access card will be a smartcard, it will contain a microchip in the card to store
and process information.
The chip will contain 2 separate areas:
· the card owner's area; and
· the Commonwealth's area.
It is proposed that card owner will be able to include in their area of the chip area any
information that they choose to include (subject to the physical capacity of the chip and
any legal restraints). It is expected that card owners will be able to customise their card
to include additional information such as organ donor status or emergency contact
details. To the extent necessary these matters will be dealt with in subsequent
legislation.
Clause 34 - Information in the Commonwealth's area of the chip in your access
card
This clause sets out the information that will be included in the Commonwealth's area
of the chip. That information is as follows:
Information in the Commonwealth's area of the chip in
your access card
Item Topic The Secretary must include this information in the
Commonwealth's area of the chip in your access card:
(a) your legal name, unless paragraph (b) or (c) applies;
1 name
(b) if you are not exempted under clause 65 from
providing your legal name and your preferred name is
on the surface of your access card--your legal name,
protected by the personal identification number for
your access card, and your preferred name;
(c) if you are exempted under clause 65 from providing
your legal name and your preferred name is on the
surface of your access card--your preferred name;
2 date of birth if you request the Secretary to include your date of birth
in the Commonwealth's area of the chip in your access
card--that date;
36
Information in the Commonwealth's area of the chip in
your access card
Item Topic The Secretary must include this information in the
Commonwealth's area of the chip in your access card:
3 sex your sex;
4 residential if you have a residential address--that address, unless you
address are exempted from this requirement (see clause 65);
5 photograph if your photograph is on the surface of your access card--
that photograph;
6 signature if your digitised signature is on the surface of your access
card--that signature;
7 card number your access card number;
the expiry date of your access card;
8 card expiry date
9 card PIN etc. (a) if there is a personal identification number for your
access card--that number, protected by encryption or
other technological protection measure;
(b) if there is other information (for example, a password)
for authenticating your identity--that information,
protected by encryption or other technological protection
measure;
10 benefit cards if you hold a benefit card--such information about that
card as is determined by the Secretary;
11 medicare if you have a medicare number--that number;
number
12 Reciprocal if you hold a Reciprocal Health Care Card--the number
Health Care of that card;
Card number
13 emergency if you have an emergency payment number--that
payment number;
number
(a) if the Secretary has determined under item 8 of the
14 registration
table in subclause 17(1) that your proof of identity is
status
full--the word "full";
(b) if the Secretary has determined under item 8 of the
table in subclause 17(1) that your proof of identity is
interim--the word "interim";
(a) if DVA has allocated you a DVA file number--that
15 DVA
number;
information
(b) if a special rate of pension under section 24 of the
Veterans' Entitlements Act 1986 is payable to you
because you are totally and permanently
incapacitated--the acronym "TPI";
(c) if a special rate of pension under subsection 24(3) of
the Veterans' Entitlements Act 1986 is payable to you
because you are blinded in both eyes--the word
"Blind";
(d) if you are a former prisoner of war--the acronym
"POW";
(e) if a pension at the rate specified by subsection 22(4) of
the Veterans' Entitlements Act 1986 is payable to you
37
Information in the Commonwealth's area of the chip in
your access card
Item Topic The Secretary must include this information in the
Commonwealth's area of the chip in your access card:
because you are entitled to extreme disablement
adjustment--the acronym "EDA";
(f) if you are a war widow or war widower--the phrase
"war widow" or "war widower" (as the case requires);
(g) if you are a DVA dependant--the phrase "DVA
dependant";
(h) if you hold a DVA White Card--the phrase "DVA
White Card holder";
(i) if you hold a DVA White Card and you have a
condition that has a code under the International
Classification of Diseases--that code;
16 statements if the Privacy Act 1988, the Freedom of Information Act
required by 1982 or other Commonwealth law requires a statement to
legislation be included in the Commonwealth's area of the chip in
your access card--that statement;
(a) such other technical or administrative information
17 other
that:
information
(i) does not expressly identify you by name or
other personal identifiers; and
(ii) is determined by the Secretary; and
(iii) is reasonably necessary for the administration
of the Register or your access card;
(b) such other information that is determined, by
legislative instrument, by the Minister and that is for
the purposes of this Act.
Under item 17(a), the Secretary will be able to add technical or administrative
information to the chip (for example, audit logs, the serial number of the chip). Item
17(a) makes it clear that under this item the Secretary is not permitted to include any
personal information that could identify a person by name or other personal identifiers.
Additionally, even the technical or administrative information that may be included
under this item must be reasonably necessary for the administration of the Register or
an access card.
As determinations by the Secretary under items 10 and 17(a) only relate to technical or
administrative matters, subclause 34(2) is declaratory of the legal position that such
determinations are not legislative instruments.
Under item 17(b), the Minister will be able to include other information in the
Commonwealth's area of the chip - but only if that information is necessary for the
purposes of the Act. This restriction is intended to ensure that only limited relevant
information will be able to be included under this provision - i.e. the information will
need to be relevant to the provision of benefits, services, programs or facilities
involving a participating agency.
As the information that may be determined by the Minister is not limited to technical
or administrative information, a determination by the Minister must be issued as a
38
legislative instrument. Accordingly, it will be required to be registered in the Federal
Register of Legislative Instruments. It will also need to be tabled in both Houses of
Parliament and will be subject to Parliamentary scrutiny (i.e. it will be subject to
disallowance by either House of Parliament). It is considered that this mechanism will
provide the necessary public and Parliamentary scrutiny and oversight of any
information that is proposed to be added under this provision.
Clause 35 - When the Secretary must not include information in the
Commonwealth's area of the chip in your access card
This clause provides that the Secretary must not include certain information in the
Commonwealth's area of the chip.
Paragraph (a) of this clause provides that the Secretary must not include particular
information in the Commonwealth's area of the chip in a person's access card if the
Secretary considers that it would be inappropriate to do so because the person is
included in the National Witness Protection Program. In such circumstances it might
be detrimental to the safety of the person or their family if particular information was
included in the Commonwealth's area of the chip.
There may also be circumstances where it would be inconsistent with an Act of the
Commonwealth Parliament to include specific information in the chip of an access
card. In these circumstances clause 35(b) will prevent the Secretary from including the
information notwithstanding the requirement in clause 34 that would normally require
such information to be included.
Clause 36 - Commonwealth's area not to contain any other information
This clause limits the information that can be included in the Commonwealth's area of
the chip in an access card. The only information that can be included is the information
set out in clause 34.
Division 5 - Ownership of your access card
Clause 37 - You own your access card
Normally the issuer of a card retains property in the card. For example, credit cards,
debit cards, drivers' licences, transport cards and even gym membership cards remain
the property of the issuer. Government issued cards around the world invariably remain
the property of the issuing government.
Access cards will be owned by the card holder, not the Government. Subclause (1)
vests ownership of the card in the card holder.
Under subclause (2), a card holder will acquire ownership in the card when the card is
issued to the card holder (see also clause 38 in relation to limitations on ownership).
Consistent with the objective of combating fraud, the Bill contains a number of
restrictions on ownership. These have been included to maintain the integrity of the
card and the system - see clause 39. See also clauses 50 to 53.
39
Clause 38 - Ownership of intellectual property etc. in your access card
The card consists of more than just the physical card (which includes the chip). It also
includes information that is stored in the chip in the card. It is not intended that
ownership of the card will, of itself, vest proprietary rights in the intellectual property
or information on the surface of the card or in the chip in the card. For this reason, this
clause clarifies that ownership of the card, by itself, does not give card holders
ownership of the intellectual property (e.g. design or copyright) or information on the
surface of the card or in the chip in the card that they do not otherwise have.
For example, ownership of the card does not give the card holder ownership or
intellectual property rights in the Commonwealth Crest that is proposed to appear on
the surface of the card, the operating system in the chip, the operating software, any
algorithmic key and specific compilations of information. This clause clarifies that
such rights do not pass to a card owner simply by virtue of the fact that they own the
card.
An analogy can be made with a book. A person can buy a book from a bookshop and
upon payment of the purchase price they own the book. However, they do not own the
copyright or moral rights in the book and do not acquire other intellectual property
rights in the material content of the book simply by virtue of the fact that they bought
the book and it becomes their property. The Bill proceeds on a similar basis.
Clause 39 - What you cannot do with your access card
This clause provides that a person's ownership of the access card does not extend to
selling the card or transferring ownership in it. Given that an access card will be
required for the delivery of Commonwealth benefits and will be an integral tool in the
prevention of fraud, it would be incompatible with these purposes for a card owner to
be able to sell their card. The basic policy underlying the access card is that only
individuals who have satisfied the rigorous and comprehensive registration process
will be issued with a card (except in exceptional circumstances). It would be
inconsistent with this policy if a card owner was able to subvert the registration process
e.g. by selling his or her card to someone else.
While this clause deals with ownership issues and places a restriction on a usual
feature of ownership, it should be read in conjunction with clause 53 which will also
make it an offence for a card owner to sell his or her card.
Division 6 - Use of your access card
Clause 40 - Your use of your access card
One of the stated objectives of the Bill is to permit card owners to use their access card
for such lawful purposes they choose (see paragraph 6(1)(e)).
Consistent with that objective, clause 40 expressly authorises card owners to use their
access card for any lawful purpose they choose. It is not the Government's intention to
impose restrictions on individuals as to how they use their card. Individuals may
choose to use their card as a convenient proof of identity document. It is their right to
40
make that choice. However, this right does not convert the card into a national identity
card.
As explained in relation to subclause 6(2), the object of the Act is that access cards are
not used as, and do not become, national identity cards. This object is given effect to
by the restricted purposes of the Bill (clause 7); the restricted uses to which
Commonwealth officers in participating agencies can use the card (clause 41); the clear
statement in clause 42 that card owners are not required to carry their cards at all times;
the offences prohibiting persons from demanding the card for identity purposes
(clauses 45 and 46); and the offences prohibiting persons from copying the card
number, photograph and signature and using such information to connect it with the
identity of the card owner (clause 57).
Clause 41- Use of access card by officers in participating agencies
Together with clause 7 ("The purposes of this Act") this clause is intended to ensure
that the access card is not used for purposes that extend beyond the provision of
benefits, services, programs or facilities (involving participating agencies) to some or
all members of the public.
The clause applies to Commonwealth officers in participating agencies (other
unauthorised uses are dealt with in the offence provisions set out in Part 4 of the Bill).
The effect of the clause is to ensure that such officers are limited to using the access
card to facilitate the provision of relevant benefits, services, programs and facilities.
Should it be decided at some future time that the access card should be able to be used
for purposes that are outside the purposes specified in clause 7, then it will be
necessary for the Government of the day to propose an amendment to the legislation
and have it debated in, and passed through, Parliament.
Together with clause 7, this clause is intended to constrain the use of the access card
and to address concerns about function creep.
While officers of participating agencies are restricted to using the access card for the
purposes of the Bill, the owners of the cards are not restricted in the same way. They
are able to use their cards for whatever lawful purpose they choose (see clause 40).
There may be occasions when a card holder requests a Commonwealth officer in a
participating agency to do something with their card which is outside the limited
purposes of the Bill specified in clause 7. It would be an unintended result if a card
holder expressly requested a Commonwealth officer in a participating agency to do
something but the officer could not do it because of the limitation in clause 41. For this
reason, paragraph (b) of clause 41 is intended to allow a Commonwealth officer in a
participating agency to use the card for other purposes if that use is with the card
owner's consent.
As an example, a card owner might request an officer in Medicare (a participating
agency) to make a copy of the person's access card for the person's own use. This is
not necessarily a purpose of the Bill under clause 7 and theoretically the officer could
not accede to the person's request. Although the officer may not commit an offence
(see clause 57(2)), paragraph (a) of clause 41 could be interpreted as preventing the
41
officer from copying the card as requested. Accordingly, paragraph (b) has been
included to avoid any doubt that the officer can, with an owner's consent, do
something that may be outside the strict purposes of the Bill as set out in clause 7.
Clause 42 - No requirement for you to carry your access card
It is the Government's clear intention that access cards will not be used as national
identity cards. This is made clear in subclause 6(2) which expressly provides that it is
an object of the Bill that access cards are not used as, and do not become, national
identity cards.
This intention is reinforced by clause 42 which provides that individuals are not
required to carry their access cards at all times. One of the distinguishing features of a
national identity card is that a person is required to carry it at all times for
identification purposes. The intention of clause 42 and subclause 6(2) is to alleviate
any concerns in the community that the access card may develop into a national
identity card.
42
Part 4 - Offences
Division 1 - What this Part is about etc.
Clause 43 - What this Part is about
This clause provides a broad overview of what Part 4 of the Bill is about.
Clause 44 - Geographical jurisdiction
This clause applies section 15.4 of the Criminal Code to the offences in Part 4 of the
Bill. In accordance with section 15.4 of the Criminal Code the offence provisions in
the Bill will apply wherever they occur - whether in Australia or not and whether they
are committed by an Australian citizen or not. Accordingly, if a foreign national
manufactures false access cards overseas, that person will commit an offence against
the Bill. It would defeat the fraud prevention policies enshrined in the Bill to allow
false access cards to be manufactured overseas by foreign nationals.
Division 2 - Offences for requiring production of an access card
Clause 45 - Requiring production of an access card for identification
A major objective in the Government's policy in relation to the access card is that
access cards are not to be used as national identity cards. This objective is clearly
stated in subclause 6(2) which sets out the objects of the Bill.
The Government has also made it clear that attempts by persons to demand the card as
a form of identification (other than in relation to the provision of Commonwealth
benefits or to prove concession status) would be prohibited and subject to significant
penalties.
Clause 45 makes it an offence for persons to intentionally require a card holder to
produce his or her card for identification purposes. This means that banks, stores,
service providers and other businesses cannot require a card holder to produce their
card for identity purposes. Of course, a card holder can choose to provide his or her
card for that purpose, and many people may find it convenient to do so. This is
consistent with paragraph 6(1)(e) and clause 40 which provide that card holders can
use their access cards for any lawful purpose they chose. However, no one can require
them to produce it - other than in relation to the provision of Commonwealth benefits
or in relation to concessions.
A person will be taken to `require' the production of an access card if they provide no
other reasonable option for a card owner to prove that they are who they say they are.
That is, a person will contravene this clause if they require the access card as the only
acceptable source of proof of identity.
To deal with the situation where a person does not use words that expressly require a
person to produce a card, subclause 45(2) ensures that so long as a card holder can
reasonably understand that he or she was being required to produce their card, then a
43
person will be taken to have required the production of a card. Many elderly people
and other vulnerable individuals may feel threatened by powerful businesses in
situations where a person may not expressly require a person to produce their card, but
nevertheless the individual understands by the statements made that they are being
required to produce their card. This clause is intended to protect such vulnerable
groups from that situation.
As a reflection of the Government's commitment that the access card cannot be
required for identity purposes, a breach of clause 45 will attract significant penalties.
For a deliberate breach of subclause 45(1) a person will be subject to a maximum
penalty of 5 years imprisonment or 500 penalty units (a penalty unit is currently $110),
or both. Corporations are subject to 5 times this penalty level. An offence against
subclause 45(2) will be subject to a maximum penalty of 2 years imprisonment or 120
penalty units, or both.
It will not be an offence for a person who is a delegate or an authorised person under
the Bill to require the production of the access card for identification purposes where
that production is for the purposes of the Bill (i.e. to facilitate the administration and
provision of Commonwealth benefits). Given that the access card is being introduced
to ensure that only those entitled to benefits receive them, then this is a necessary
exemption and is consistent with the policy to introduce the card as an effective anti-
fraud measure in relation to the delivery of Commonwealth benefits.
Another exception is where a person requires a card holder to produce their access card
to ensure that the card holder is entitled to a concession. For example, some service
providers provide some of their services at discounted rates to pensioners or to persons
who are entitled to particular kinds of Commonwealth concessions. Subparagraph
45(1)(d)(i) is intended to ensure that these service providers can continue to provide
these discounted rates to persons who are entitled to the relevant concession.
Accordingly, it will not be an offence for a person to require a card holder to produce
his or her card to verify that they are entitled to the relevant concession.
Similarly, an exemption will apply in relation to staff of State hospitals who may
require production of an access card to prove that a patient has a medicare number in
order to provide a hospital service (subparagraph 45(1)(d)(ii)).
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
45 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
44
Clause 46 - Requiring production of an access card for supply of goods and
services etc.
This clause is closely related to the previous clause. It prohibits persons from
intentionally requiring a card holder to produce his or her card as a pre-condition to the
supply of goods or services.
The notion of goods and services is widely defined and includes the following conduct:
· the supply of goods or services;
· the conferral of any right, title or advantage;
· the admission to a status;
· the modification or cancellation of a status;
· the admission to membership of an association or body (whether
incorporated or not);
· the renewal or continuation of membership of an association or body
(whether incorporated or not);
· the acceptance of an application for appointment to an office;
· the making of an agreement;
· making facilities available;
· allowing access to, or use of, any premises;
· the making of an offer of employment.
As the Government's intention is that the card will only be required to be produced in
relation to the provision of Commonwealth benefits, this clause ensures that service
providers cannot refuse to provide their services or goods because a customer does not
provide his or her access card. The offence does not apply to a delegate or an
authorised person or delegate who refuses to supply Commonwealth benefits to a
person who refuses to produce his or her access card (paragraph 46(1)(c)). Given the
rationale for the card this exception is both necessary and appropriate.
A person will be taken to `require' the production of an access card if they provide no
reasonable option for a card owner to prove that they are who they say they are. That
is, a person will contravene this clause if they require the access card as the only
acceptable source of proof of identity.
Another exception is where a person requires a card holder to produce their access card
to ensure that the card holder is entitled to a concession. For example, some service
providers provide some of their services at discounted rates to pensioners or to persons
who are entitled to particular kinds of Commonwealth concessions. Subparagraph
46(1)(d)(i) is intended to ensure that these service providers can continue to provide
these discounted rates to persons who are entitled to the relevant concession.
Accordingly, it will not be an offence for a provider to refuse to provide a service at a
discounted rate if a person refuses to produce his or her card to verify that they are
45
entitled to the relevant concession. In these cases, the card holder will not be refused
the service, but will simply be required to pay the normal price for the service.
Similarly an exemption will apply in relation to staff of State hospitals who may
require production of an access card to prove that a patient has a medicare number in
order to provide a hospital service (subparagraph 46(1)(d)(ii)).
The offence in this clause is related to the offence in clause 45 as a supplier would
generally only require a card in relation to the supply of goods or services in order to
prove identity. It was considered appropriate to include a specific offence dealing with
the supply of goods and services as a consumer protection measure to ensure that
consumers were aware of their rights and that service providers were fully aware of
their obligations.
Like the offence in clause 45, the maximum penalty for an intentional breach of this
provision is a maximum penalty of 5 years imprisonment or 500 penalty units, or both.
The penalty level reflects the seriousness with which the Government views such
conduct.
Subclause 46(2) is similar to subclause 45(2). It deals with the situation where a person
does not use words that expressly require a person to produce a card, but makes
statements that a card holder can reasonably understand that he or she was being
required to produce their card. In such a case the person will be taken to have required
the production of a card. Many elderly people and other vulnerable individuals may
feel threatened by powerful businesses in situations where a person may not expressly
require a person to produce their card, but nevertheless the individual understands by
the statements made that they are being required to produce their card. This clause is
intended to protect such vulnerable groups from that situation.
An intentional breach of subclause 46(2) will attract a maximum penalty of 2 years
imprisonment or 120 penalty units, or both.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
46 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Division 3 - Offences for doing things to access cards
Subdivision A - Offences committed by others
Clause 47 - Defacing or damaging someone else's access card
This clause will make it an offence for a person to intentionally deface or damage an
access card that does not belong to the person. Given that the access card will be a key
part of the Government's infrastructure in the effective and efficient delivery of
46
Commonwealth benefits and a key component in preventing fraud against the taxpayer,
the penalty level for a deliberate contravention reflects the significance of the card for
these purposes.
The maximum penalty for a contravention of this provision is imprisonment for 5 years
or 500 penalty units, or both.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
47 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Clause 48 - Changing information in the Commonwealth's area of the chip in
someone else's access card
Clause 48 will make it an offence for a person to intentionally change the information
in the Commonwealth's area of the chip in someone else's card. Given that the access
card will be a key part of the Government's infrastructure in the effective and efficient
delivery of Commonwealth benefits and a key component in preventing fraud against
the taxpayer, it would be inappropriate for persons to change information in the chip of
the card either for mischievous purposes or for fraudulent purposes. The level of
penalty (5 years or 500 penalty units or both) reflects significance of the card as an anti
fraud measure.
The offence will not apply to actions by authorised persons or delegates who change
information for the purposes of the Bill.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
48 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Clause 49 - Selling etc. someone else's access card
Clause 49 will make it an offence for a person to intentionally sell someone else's
access card.
Given that the access card will be a key part of the Government's infrastructure in the
effective and efficient delivery of Commonwealth benefits and a key component in
preventing fraud against the taxpayer, it would be inappropriate for persons to be able
to sell someone else's access card. A person would normally only engage in such
conduct to gain some sort of financial advantage for themselves or someone else or as
47
part of a fraudulent enterprise. The level of penalty (maximum of 10 years
imprisonment or 1,000 penalty units, or both) reflects the significance of the card as an
anti-fraud measure.
It is considered that any attempts to degrade the anti-fraud aspects of the card warrant
significant penalties.
The penalty level is based on a similar provision in the Australian Passports Act 2005.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
49 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Subdivision B - Offences committed by you in relation to your access
card
Clause 50 - Defacing or damaging your access card: dishonest intent
The purpose of clause 50 is to discourage card owners from intentionally defacing or
damaging their card with the intention of dishonestly obtaining an advantage (whether
financial or otherwise) for themselves or someone else.
The word `dishonest' is defined in clause 5 to mean:
· dishonest according to the standards of ordinary people; and
· known by the person to be dishonest according to the standards of
ordinary people.
As a fundamental objective of the access card is to provide a robust system to reduce
fraud, it is considered necessary to include a number of restrictions on the ownership
principle, to the extent that a person may want to tamper with their card for fraudulent
purposes. Normally, a person is entitled to do what they want with their own property,
subject to any legal restraints that may be imposed by any particular law.
Clause 50 proceeds on the same basis. While clause 50 will make it an offence for a
person to tamper with or destroy their own card, this will be limited to those
circumstances where a person does so in order to obtain some sort of financial
advantage for himself or herself or for another person. So if a person alters details on
the card in order to try to secure a Commonwealth benefit to which they (or another
person) are not entitled, then even though they may own the card they will contravene
this clause. The offence will apply whether or not the person succeeds in obtaining the
advantage.
The maximum penalty for this offence is imprisonment for 5 years or 500 penalty
units, or both.
48
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
50 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Clause 51 - Changing information in the Commonwealth's area of the chip in
your access card: dishonest intent
Although card owners will own their card, that ownership of itself does not give them
ownership of the information in the Commonwealth's area of the chip in the card (see
clause 38).
Clause 51 will make it an offence for a card owner to intentionally change any
information in the Commonwealth's area of the chip in their access card. This will only
apply where the card owner does so with the intention of dishonestly obtaining an
advantage (whether financial or otherwise) for the card owner or any other person. The
person will not need to succeed in obtaining the advantage for the offence to apply.
The word `dishonest' is defined in clause 5 to mean:
· dishonest according to the standards of ordinary people; and
· known by the person to be dishonest according to the standards of
ordinary people.
The maximum penalty for a breach of this provision is imprisonment for 5 years or 500
penalty units, or both.
Given that the access card will be a key part of the Government's infrastructure in the
effective and efficient delivery of Commonwealth benefits and a key component in
preventing fraud against the taxpayer, the penalty level for a deliberate contravention
reflects the significance of the card.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
51 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Clause 52 - Changing information in the Commonwealth's area of the chip in
your access card
This offence is similar to the offence in clause 51. However, while the person must
intend to change the information (i.e. it will not apply where a person accidentally
49
changes the information), there is no requirement for dishonest intent. On this basis the
offence attracts a lesser penalty of 2 years imprisonment or 120 penalty units, or both.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
52 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Clause 53 - Selling etc. your access card
Even though a person may own their access card, this provision will make it an offence
for the person to intentionally sell their access card. The maximum penalty for the
commission of this offence is imprisonment for 10 years, or 1,000 penalty units, or
both.
It is important to ensure that cards are not sold by card owners and that appropriate
penalties are imposed on such activities.
This is important given that the card is intended to be a major factor in reducing fraud
against the Commonwealth. It is considered that any attempts to degrade the anti-fraud
aspects of the card warrant significant penalties.
This offence (and penalty) is based on a similar provision in the Australian Passports
Act 2005.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
53 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Division 4 - Other access card offences
Clause 54 - Unlawful access cards
The purpose of clause 54 is to empower the Secretary to be able to require persons to
return access cards:
· that have been obtained by means of false or misleading statements,
information or documents;
· that have been used in the commission of an offence; or
· that are false access cards.
50
A person will commit an offence against this provision if the person has possession of
the card and fails to return it as required after being advised that the Secretary is
authorised to require the return of the card and that the person will commit an offence
if he or she does not do so.
The maximum penalty for the commission of this offence is imprisonment for 2 years
or 120 penalty units, or both.
This is important given that the card is intended to be a major factor in reducing fraud
against the Commonwealth. It is considered that any attempts to degrade the anti-fraud
aspects of the card warrant significant penalties.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
54 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Clause 55 - Dishonestly obtaining an access card
Clause 55 makes it an offence for a person to dishonestly obtain an access card. The
maximum penalty for the commission of this offence is imprisonment for 10 years, or
1,000 penalty units, or both.
The word `dishonest' is defined in clause 5 to mean:
· dishonest according to the standards of ordinary people; and
· known by the person to be dishonest according to the standards of
ordinary people.
This offence is considered necessary given that the card is intended to be a major factor
in reducing fraud against the Commonwealth. It is considered that any attempts to
degrade the anti-fraud aspects of the card warrant significant penalties.
This offence (and penalty) is based on a similar provision in the Australian Passports
Act 2005.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
55 where they do so intentionally. Subsection 5.6(1) of the Criminal Code provides
that if the law creating the offence does not specify a fault element for a physical
element that consists only of conduct, intention is the fault element for that physical
element. Subsection 5.6(2) of the Code provides that if the law creating the offence
does not specify a fault element for a physical element that consists of a circumstance
or a result, recklessness is the fault element for that physical element.
51
Clause 56 - Possessing a false access card
This clause makes it an offence for a person to possess a false access card. The
maximum penalty for the commission of this offence is imprisonment for 10 years, or
1,000 penalty units, or both.
This offence is considered necessary given that the card is intended to be a major factor
in reducing fraud against the Commonwealth. It is considered that any attempts to
degrade the anti-fraud aspects of the card warrant significant penalties.
This offence (and penalty) is based on a similar provision in the Australian Passports
Act 2005.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
56 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Clause 57 - Unauthorised copying etc. of access card number, photograph or
signature
Clause 57 is intended to prevent persons from copying or recording certain information
on a person's access card i.e. a person's access card number, photograph or signature.
It will also be an offence for a person to keep a copy or maintain a record of a person's
access card number, photograph or signature.
Under this clause a person will also be prohibited from divulging a card owner's access
card number (as well as signature and photograph) to a third person or using such
information in a way which would connect it with the owner's identity. This clause is
based on section 8WB of the Taxation Administration Act 1953 dealing with tax file
numbers and is intended, amongst other things, to prevent persons from making
unauthorised databases using information on an access card.
The clause is designed to protect a card owner's privacy as well as the confidentiality
of information on the surface of an access card to ensure that the integrity of the access
card system is not compromised.
The clause is intended to cover all forms of copying, including photocopying, scanning
and photographing.
The offence will not apply to delegates or persons who are authorised persons under
the Bill and record or copy the access card number, photograph or signature for the
purposes of the Bill. For example, a pharmacist (who is authorised) and who records a
card owner's access card number in connection with a pharmaceutical benefit will not
commit an offence under this provision.
52
However, persons who are delegates or authorised persons but who copy or record an
access card number for purposes that are outside the purposes of the Bill will breach
this clause unless they do so with the owner's written consent or they are otherwise
lawfully excused.
Section 10.5 of the Criminal Code provides that a person does not commit an offence
under a Commonwealth law if the person's actions are justified or otherwise excused
under a law of the Commonwealth. For example, under section 108 of the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 reporting entities are, in
certain circumstances, required to make and retain a copy of a document used for
identification purposes.
In a situation where a person chooses to provide their access card to a reporting entity
(e.g. a bank), the entity would in certain circumstances be required under the Anti-
Money Laundering and Counter-Terrorism Financing Act 2006 to make and retain a
copy of the card (which would include the card number). In this situation section 10.5
of the Criminal Code would apply and the reporting entity would not be criminally
responsible under clause 57.
Subclause (2) will also provide a defence where a card owner consents to the card
number, photograph or signature being copied or recorded. The consent will have to be
in writing. Such consent will need to be obtained in a way that ensures that it is
specific and informed consent. In accordance with the principle of informed consent,
an individual can withdraw his or her consent. This is consistent with the underlying
philosophy that a card owner can use his or her card for any lawful purpose they
choose (see paragraph 6(1)(e) and clause 40).
The maximum penalty for the commission of an offence in this clause is 2 years
imprisonment or 120 penalty units, or both.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
57 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Division 5 - Offences in relation to applications for registration or
access cards
Clause 58 - Making false or misleading statements in relation to an application
for registration or access card
The purpose of clause 58 is to prevent individuals from being registered or obtaining
access cards by deliberately making false or misleading statements as part of the
application process for registration or an access card. The maximum penalty for the
commission of this offence is imprisonment for 10 years or 1,000 penalty units, or
both.
53
This offence is considered necessary given that the card is intended to be a major factor
in reducing fraud against the Commonwealth. The Government believes that any
attempts to degrade the anti-fraud aspects of the card warrant significant penalties.
This offence (and penalty) is based on a similar provision in the Australian Passports
Act 2005.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
58 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Clause 59 - Giving false or misleading information in relation to an application
for registration or access card
The purpose of clause 59 is to prevent individuals from being registered or obtaining
access cards by deliberately giving false or misleading information as part of the
application process for registration or an access card. The maximum penalty for the
commission of this offence is imprisonment for 10 years or 1,000 penalty units, or
both.
This offence is considered necessary given that the card is intended to be a major factor
in reducing fraud against the Commonwealth. The Government believes that any
attempts to degrade the anti-fraud aspects of the card warrant significant penalties.
This offence (and penalty) is based on a similar provision in the Australian Passports
Act 2005.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
59 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Clause 60 - Producing false or misleading documents in relation to an application
for registration or access card
The purpose of this clause is to prevent individuals from being registered or obtaining
access cards by deliberately using false or misleading documents as part of the
application process for registration or an access card. The maximum penalty for the
commission of this offence is imprisonment for 10 years or 1,000 penalty units, or
both.
54
This offence is considered necessary given that the card is intended to be a major factor
in reducing fraud against the Commonwealth. The Government believes that any
attempts to degrade the anti-fraud aspects of the card warrant significant penalties.
This offence (and penalty) is based on a similar provision in the Australian Passports
Act 2005.
Subclause (3) provides a defence where a document which may be false or misleading
is accompanied by a statement signed by the person producing the document stating
the document is, to the person's knowledge, false or misleading. This is intended to
protect innocent parties who are unsure of the validity of a document, although that
document may be the only material available to them to meet identity criteria. The
provision is based on subsection 31(3) of the Australian Passports Act 2005.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
60 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Division 6 - Offences by Commonwealth officers
Clause 61 - Issuing an access card contrary to this Act
Clause 61 applies to persons who have been delegated a power under the Bill to issue
access cards.
This clause creates an offence for such persons to issue an access card knowing that the
issue of the card is contrary to the Bill. The maximum penalty for the commission of
this offence is imprisonment for 10 years or 1,000 penalty units, or both.
This offence is considered necessary given that the card is intended to be a major factor
in reducing fraud against the Commonwealth. The Government believes that any
attempts to degrade the anti-fraud aspects of the card warrant significant penalties.
This offence (and penalty) is based on a similar provision in the Australian Passports
Act 2005.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
61 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
55
Clause 62 - Abuse of public office
Clause 62 applies to persons who have been delegated or authorised under the Bill to
perform functions in relation to the access card. A major purpose of this clause is to
prevent such persons using their position or influence to pressure an official
responsible for issuing access cards to issue a card for improper purposes (e.g. to a
friend who may not be entitled to a card). The maximum penalty for the commission of
this offence is imprisonment for 10 years or 1,000 penalty units, or both.
This provision is important given that the card is intended to be a major factor in
reducing fraud against the Commonwealth. The Government believes that any attempts
to degrade the anti-fraud aspects of the card warrant significant penalties.
This offence (and penalty) is based on a similar provision in the Australian Passports
Act 2005.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
62 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
Division 7 - Other offences
Clause 63 - Protection of access card name and symbol
In view of the importance of the access card to the effective delivery of
Commonwealth benefits (including as a fraud preventative measure), the Government
believes that the name of the card should be protected and not be available for use in
business. The use of the name in business could cause significant confusion amongst
consumers, degrade the integrity of the card and could facilitate the manufacture of
misleading cards. For these reasons the Government has decided that the name of the
card should vest exclusively in the Commonwealth.
This clause is related to clause 28 (under which the Commonwealth acquires all
property in the access card name and symbol) and makes it an offence for a person to
use the protected access card name or the protected access card symbol without the
consent of the Minister. The relevant protected names are `Health and Social Services
Access Card' and any name determined by the Minister under clause 27.
The commission of the offence in this clause will attract a penalty of up to 30 penalty
units.
In accordance with section 5.6 of the Criminal Code, a person will only breach clause
63 where they commit the proscribed conduct intentionally. Subsection 5.6(1) of the
Criminal Code provides that if the law creating the offence does not specify a fault
element for a physical element that consists only of conduct, intention is the fault
56
element for that physical element. Subsection 5.6(2) of the Code provides that if the
law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical
element.
57
Part 5 - Miscellaneous
Division 1 - What this Part is about
Clause 64 - What this Part is about
Clause 64 provides a brief overview about what Part 5 of the Bill is about.
Division 2 - Exemptions and other determinations
Clause 65 - Exemptions by the Minister, DVA Minister, Secretary or DVA
Secretary
The general rule in the Bill is that individuals wanting to obtain an access card:
· will need to be at least 18;
· will need to attend an interview;
· will need to have their photograph taken;
· will need to provide their signature;
· will need to provide their legal name;
· will need to have their residential address included in the
Commonwealth's area of the chip.
However, there may be times when this will not be possible. For example, some
individuals may be too ill to attend an interview, some may suffer emotional distress if
required to have their photograph taken (e.g. a person who is severely disfigured), and
from time to time there may be cases where children under 18 may need to be provided
with a card of their own (for example, to access medical services). In some situations
(e.g. domestic violence) it may be inappropriate to include a person's residential
address in the Commonwealth's area of the chip.
For these reasons, this clause authorises the Minister or the Secretary to exempt
persons (other than a DVA individual) from the general requirements in appropriate
circumstances. A similar power is provided to the DVA Minister and the DVA
Secretary in relation to DVA individuals (i.e. members of the Department of Veterans'
Affairs community).
The Minister for Human Services and the DVA Minister will be able to exempt
individuals included in a class of individuals while the Secretaries will only be able to
exempt specific individuals. An exemption under this clause will need to be in writing.
Ministerial exemptions in relation to classes will also need to be published. It is
intended that such exemptions will be published on the internet and in newspapers.
Determinations under clause 65 are administrative instruments. Subclause 65(6) is
declaratory of the legal position that such determinations are not legislative
instruments.
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Clause 66 - Minister to determine identity guidelines
This clause empowers the Minister to issue identity guidelines for the purposes of
specified provisions in the Bill.
Under subclause (2) any such guidelines in force will need to be taken into account by
the Secretary and delegates when making decisions under clauses 13(2)(b)(i), 13(4)(b),
14(c), 23(2)(b)(i), 23(4)(b) and 24(1)(f).
Given the significance of the access card as a proof of identity document in relation to
the delivery of Commonwealth benefits, it is appropriate that the Minister responsible
for ensuring the proper administration of the access card system is able to provide
guidelines in relation to the Government's expectations about proof of identity issues
relating to the access card.
Any guidelines issued by the Minister under this clause will be legislative instruments
and will be required to be registered in the Federal Register of Legislative Instruments,
will need to be tabled in both Houses of Parliament and will be subject to disallowance
by either House. As a result they will also be available for public scrutiny.
Clause 67 - DVA Minister may determine who are DVA individuals
This clause will enable the Minister for Veterans' Affairs to determine that particular
individuals are DVA individuals for the purposes of paragraph (c) of the definition of
DVA individual in clause 5. Under that definition various classes of individuals are
defined to be DVA individuals.
The effect of being included in the definition is that certain DVA information will be
included on the Register if the individual requests the Secretary to include that
information on the individual's access card. For example, under item 7(c) in the table
in clause 30, former prisoners of war can request the Secretary to include that fact on
their access card - in which case the acronym "POW" will be included on the card. In
these circumstances, that acronym will be included on the Register under item 10(c) of
the table in clause 17 if the person is a DVA individual. A DVA individual will also be
able to request the Secretary to include on the Register the rank they are entitled to be
known as a result of their military service (item 11(h) of clause 17).
Clause 67 will provide the DVA Minister the flexibility to include specified
individuals (or classes of individuals) in the definition of DVA individual where such
individuals may be engaged in defence type activities but may not strictly be covered
by paragraph (a) of the definition of DVA individual in clause 5.
Division 3 - Delegations and authorisations
Clause 68 - Delegations by the Minister
This clause will allow the Minister to delegate certain of his or her powers or functions
to a Commonwealth officer in a participating agency.
The Minister will only be able to delegate the powers in:
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· item 17 of the table in clause 17 (information on the Register);
· paragraph 24(1)(g) (requirements to be issued an access card);
· item 17 of the table in clause 34 (information in the Commonwealth's
area of the chip); and
· clause 65 (exemptions),
to the Secretary. The Secretary will not be able to further sub-delegate any of these
powers or functions. Where a delegated power requires a legislative instrument to be
issued (e.g. under item 17(b) of clause 17), the Secretary will also be required to
exercise the power by issuing a legislative instrument.
The Minister will be unable to delegate the power to issue policy directions in relation
to the administration of the Bill (clause 8), the power to determine the name and
symbol of the access card (clause 27) or the power to issue identity guidelines
(clause 66). These powers will need to be exercised personally by the Minister.
Under subclause (3), a delegate must comply with directions issued by the Minister. It
should be noted that directions cannot, as a matter of law, require a delegate to make
particular decisions.
Where the Minister is required to exercise a power by legislative instrument, a delegate
will also need to exercise the power by legislative instrument in the event that the
power is delegated to him or her.
Clause 69 - Delegations by the DVA Minister
This clause will enable the DVA Minister to delegate his or her powers or functions
under clause 65 (exemptions) to the DVA Secretary.
Under subclause (2), the DVA Secretary must comply with directions issued by the
DVA Minister. It should be noted that directions cannot, as a matter of law, require a
delegate to make particular decisions
Clause 70 - Delegations by the Secretary
This clause allows the Secretary to delegate his or her powers under the Bill to a
Commonwealth officer in a participating agency or to the chief executive of an agency
under the Financial Management and Accountability Act 1997 or a director or chief
executive of a Commonwealth authority or company that is prescribed for the purposes
of clause 70.
The power of the Secretary under clause 16 to establish the Register will not be
capable of delegation.
As a practical matter, many of the powers in relation to the access card (e.g.
conducting interviews, taking photographs, formally issuing cards etc) will be
conducted by officers in the relevant participating agencies (e.g. Medicare, Centrelink,
Department of Veterans' Affairs). The Secretary could delegate such powers directly to
60
officers in those agencies. From a governance perspective this would allow the
Secretary to by-pass the heads of those agencies.
To avoid that outcome the Bill will allow the Secretary to delegate powers to the chief
executive of an agency and the chief executive of the agency will then be able to sub-
delegate the power directly to an officer in the agency (subclause (4)). This is
considered to be a more transparent and accountable mechanism for dealing with
officers in other agencies from a governance perspective.
Subclauses (3) and (5) will allow the Secretary and the relevant chief executive (to
whom a power has been delegated) to impose directions on delegations issued by them.
Where the Secretary imposes a direction on the delegated power, then all relevant
delegates and sub-delegates must comply with those directions. It should be noted that
directions cannot, as a matter of law, require a delegate to make particular decisions.
Clause 71 - Delegations by the DVA Secretary
This clause will allow the DVA Secretary to delegate to a Commonwealth officer in a
participating agency the DVA Secretary's powers or functions under clause 65
(exemptions). Under subclause (2), a delegate must comply with directions issued by
the DVA Secretary. It should be noted that directions cannot, as a matter of law,
require a delegate to make particular decisions.
Clause 72 - Authorisations by the Secretary
The purpose of this clause is to allow the Secretary to authorise persons to exercise the
powers of authorised persons under the Bill. Some examples of these powers are:
· clause 45 which will permit authorised persons to require the access
card for the purposes of the Bill; and
· clause 48 which will allow authorised persons to alter information in the
Commonwealth's area of the chip in an access card for the purposes of
the Bill.
Some of these powers will potentially be exercised by doctors and pharmacists who
will have important roles to play in the provision of services which attract
Commonwealth benefits and which will eventually require a person to have an access
card. For example, pharmacists and their staff currently request a Medicare Card to
confirm eligibility to PBS benefits.
For this reason it is proposed to authorise them so as to ensure they are afforded the
appropriate powers and protections.
As delegations will be restricted to Commonwealth officers, the Bill proceeds on the
basis that non-Commonwealth officers will be appointed as authorised persons.
Under this clause, the Secretary will be able to appoint Commonwealth officers to be
authorised persons. However, the Secretary will not be able to appoint Commonwealth
officers who are not in a participating agency unless such officers are prescribed by the
regulations. Accordingly, it would not be possible to appoint an officer in an agency
such as Customs unless Customs was first prescribed by regulations. Any such
61
regulations will be subject to Parliamentary scrutiny and disallowance. This will ensure
that there is appropriate parliamentary oversight over the categories of Commonwealth
officers who can be appointed as authorised persons.
Division 4 - Other matters
Clause 73 - Compensation for acquisition of property
This clause is to be read in conjunction with clause 28 (which vests ownership of the
card name and symbol in the Commonwealth) and clause 63 (which creates an offence
for a person to use the card name without consent).
Subclause (1) recognises the constitutional requirement that if the effect of a law of the
Commonwealth results in an acquisition of property from a person otherwise than on
just terms, the Commonwealth is liable to pay a reasonable amount of compensation to
the person.
Subclause (2) provides a mechanism for a person to have the matter decided by the
Federal Court in the event that the Commonwealth and the person cannot agree on the
amount of compensation.
Clause 74 - Regulations
This clause provides the usual regulation power to authorise the making of regulations
that are necessary to be prescribed for the purposes of the Bill. For example,
regulations will be required for the definition of `benefit card' in clause 5 and for the
purposes of paragraphs 72(1)(b) and (c).
62
MATTERS NOT DEALT WITH IN THE BILL
Administrative review
The Bill does not provide any express administrative review mechanisms for reviewing
administrative decisions under the Bill.
Appeal mechanisms in relation to the access card and registration system will be
included in the second tranche of legislation. Appeal rights will not be diminished and
will be consistent with those in place for existing cards and entitlements. The form of
that review mechanism will be the subject of advice from the Taskforce.
Privacy issues
The access card and Register will not exist in a vacuum. They will exist within the
structure of the Commonwealth's overall legislative framework. As such, the whole
suite of existing privacy legislative protections will apply to the card and Register.
For example, the existing privacy protections in the Privacy Act 1988 will apply in
relation to the access card and Register. Other protections in the Crimes Act 1914 and
the Public Service Code of Conduct will also apply to prevent unauthorised access and
use of information. It is intended that these existing privacy protections will continue
to apply.
However, it is recognised that there is merit in treating these issues in a wholistic
manner and addressing some of these protections in the access card legislation. This is
an issue that will be fully considered in the development of the second tranche of
legislation.
Other matters not dealt with
Apart from the review mechanisms and privacy issues, there are a number of other
matters that are not dealt with in the Bill.
These matters include:
· effective oversight and governance of the access card system;
· dependants, carers and other linked persons;
· suspensions and cancellations of registration and the card;
· the need for, and use of, the card by persons overseas;
· replacement of lost and stolen cards;
· the interaction of the access card and existing cards during the
transitional period between 2008 and 2010;
· protection of information;
· issues relating to an individual's area of the chip;
63
· computer hacking and other offences and inter-relationship with the
Criminal Code;
· requirements to present the card to obtain Commonwealth benefits from
2010.
Some of these matters are being considered by the Taskforce, and the Government's
position on these issues will not be determined until after the Taskforce presents its
further reports to the Australian Government.
The requirement for retention of proof of identity documents will need to be
considered in the context of the Archives Act 1983 which determines the retention
requirements for a range of Commonwealth documents.
Decisions whether to include additional offences in the Bill or to amend the Criminal
Code (if necessary) will be considered by the government after appropriate
consultation.
Other matters may be subject to developments arising from the procurement process
currently in train in relation to software and hardware requirements that will be
necessary for the effective implementation of the access card system as a whole.
Accordingly, these issues are not dealt with in the Bill and will be dealt with in
subsequent legislation. Future legislation will also deal with the eligibility
requirements for Commonwealth benefits that are specified in the separate pieces of
legislation establishing the benefits.
The next Bill is expected to give effect to the Government's announcement on 26 April
2006 that from 2010 people will only be able to obtain Government health and social
service benefits if they have an access card.
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