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Service Victoria Amendment Bill 2021
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill will enable the Victorian Public Sector, through Service Victoria and
the Service Victoria CEO, to deliver government services to the public that
are more accessible, adaptable, fairer, innovative, and simpler, while enabling
the expansion of Service Victoria's enhanced safeguards on information
protection.
The Bill will also--
• support digital transformation in the Victorian Public Sector so
that it is a digital-ready part of a thriving Victorian digital
economy and can keep pace with ongoing technological
innovation;
• improve the delivery of digital services to Victorians and
Victorian businesses, including in partnership with
governments of other Australian jurisdictions; and
• expand the application of the information protections and
regulatory framework for the delivery of government services
to the public by the Service Victoria CEO and Service Victoria.
To achieve this, the Bill amends the Service Victoria Act 2018 (the Principal
Act) to clarify and expand the categories of transactions and functions that
Service Victoria and the Service Victoria CEO can perform to support the
delivery of government services to the public, and to allow the Service
Victoria CEO to deliver digital tokens. The Bill will also make operational
and technical improvements to the Principal Act.
591318 1 BILL LA INTRODUCTION 16/11/2021
Clause Notes
Clause 1 provides the purpose of the Bill, which is to amend the Principal
Act to--
• provide alternative methods to enable the Service
Victoria CEO to perform functions on behalf of, or for,
government agencies;
• enable the Service Victoria CEO to perform a broader
range of both statutory and non-statutory functions and
transactions on behalf of, or for, government agencies;
• provide for the delivery, giving, granting, or issuing of
digital tokens by the Service Victoria CEO and the use
of digital tokens by persons;
• enable the establishment, use and maintenance of
service agency databases by the Service Victoria CEO
for service agencies or the Minister responsible for the
Principal Act; and
• make a range of minor and technical improvements to
the operation of the Principal Act.
In addition to the purposes above, the purpose of clause 1 is to
confirm that the Service Victoria CEO, may perform both
statutory and non-statutory functions in recognition of the CEO's
dual role as an Administrative Office Head of an Administrative
Office of a Department under the Public Administration
Act 2004 and the holder of various duties, functions, powers and
rights under the Principal Act.
Clause 2 provides for the commencement of the Bill following Royal
Assent.
Subclause (1) provides for the Bill to come into operation on a
day or days to be proclaimed.
Subclause (2) provides that, if a provision has not come into
operation before 1 July 2022 by proclamation published in the
Victoria Government Gazette, the Bill will commence by default
on that day.
Clause 3 states the Service Victoria Act 2018 is called the Principal Act
for the purposes of the Bill.
2
Clause 4 amends, inserts and repeals definitions in the Principal Act to
support the operational flexibility of Service Victoria and the
Service Victoria CEO to undertake a broader range of functions
and otherwise implement the reforms in this Bill.
The following definitions in the Principal Act are amended--
• authority--the definition is being amended to replace
the words "an enactment" with "law" to expand the
definition from applying only to authorities given,
granted or issued under an enactment (being an Act or
subordinate instrument, as defined in the Interpretation
of Legislation Act 1984), to also apply to authorities
that may be given, granted or issued under common
law, unwritten law, or the executive power or another
law of the State or of the Commonwealth or of another
State or Territory. This is to recognise the broad and
varied range of ways in which an authority can be
issued by government to the public.
• customer service function--the definition is being
substituted with a more expansive definition, that will
include functions of a service agency, the Service
Victoria CEO or a non-Victorian government agency,
that are statutory customer service functions (express or
implied), as well as any non-statutory customer service
functions under common law, unwritten law, or the
executive power or another law of the State or of the
executive power or a law of the Commonwealth or of
another State or Territory (if relevant) and includes
functions that relate to--
• receiving an application or a request for an
authority or official information document;
• receiving payment of any appropriate fee
required in respect of an application or request
for an authority or official information
document;
• delivering an authority or official information
document;
• receiving an application or a request--
• for registration; or
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• in relation to any program or service
offered by or on behalf of the State, a
service agency or a non-Victorian
government agency;
• receiving or making a payment, including
receiving a payment of a fee, in relation to an
application or request for registration or in
relation to any program or service offered by
or on behalf of the State, a service agency or a
non-Victorian government agency;
• delivering or receiving information--
• to meet a requirement under law; or
• otherwise for the purposes of a program
or service offered by or on behalf of the
State, a service agency or a non-Victorian
government agency; and
• a function prescribed by regulations under
the Principal Act to be a customer service
function.
These changes will support Service Victoria and the
Service Victoria CEO to deliver a broader range of
customer service functions to the public on behalf of or
for service agencies (including as directed by the
Minister responsible for the Principal Act), the State, the
Commonwealth or other States or Territories.
Examples of new types of customer service functions
that may fit within the proposed expanded definition
include--
• making bookings with a service agency for an
appointment; and
• requesting a service be delivered by a service
agency; and
• reporting an issue with a government service,
program or infrastructure to a service agency;
and
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• facilitating the payment of monies to a service
agency with respect to a government service or
program; and
• providing a digital portal for private sector
organisations to access when delivering services
on behalf of government; and
• checking the status or validity of a current
license or registration with a service agency.
Importantly, the expanded list of customer service
functions remains limited to those functions of
government that are fundamentally administrative in
nature.
As it is not possible to define all of the possible
administrative functions of service agencies, the more
expansive definition will also allow functions to be
prescribed if they do not fall within the defined list,
which may be needed due to the various types of
customer service-like functions undertaken by
government.
The power for the Governor in Council to make
regulations under the Principal Act to prescribe further
customer service functions is set out in section 58 of
that Act. The regulations under section 58 of the
Principal Act may be of general or limited application.
The regulations may also prescribe which aspects or
types of customer service functions are to be prescribed,
for example, the digital or non-digital aspects, or the
whole or part of an express or implied statutory or non-
statutory customer service function under law.
Any regulations to prescribe additional customer service
functions will be subject to ordinary legislative and
parliamentary processes, requirements and scrutiny.
In addition to the limits in the new definition of
customer service function in the Principal Act, the
Parliament's oversight and scrutiny of any future
regulations prescribing further customer service
functions, if required, will ensure they remain
appropriately adapted to administrative functions of
government.
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• customer service information--the definition is being
substituted with a more expansive definition to ensure a
broader range of regulated information (as defined in
section 3 of the Principal Act to mean "personal
information, health information, identifiers and unique
identifiers") receives protections under the Principal
Act, while ensuring the information can be collected,
used and disclosed as permitted by the Act.
The definition expressly excludes information that falls
within the defined terms "account information" and
"identity information" to clarify the limits of the
definition and which parts of the Principal Act apply to
different types of information.
• identity information--the definition is being amended
to limit it to information provided to the Service
Victoria CEO for the purpose of verifying an
individual's identity under Part 6 of the Principal Act.
This is a technical correction to the Principal Act.
• identity verification function--the definition is being
substituted with a more expansive definition, that will
include functions of a service agency, the Service
Victoria CEO or a non-Victorian government agency,
that are statutory functions (express or implied), as well
as any non-statutory identity verification functions
under common law, unwritten law, or the executive
power of the State or another law, or of the executive
power or another law of the Commonwealth or of
another State or Territory (if relevant) that include
functions--
• that require--
• an individual to provide information for
the purpose of verifying the individual's
identity; or
• information to be obtained for the purpose
of verifying an individual's identity; or
• the verification of an individual's identity;
or
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• prescribed in regulations under the
Principal Act to be identity verification
functions.
These changes will support Service Victoria and the
Service Victoria CEO in delivering a broader range of
identity verification functions on behalf of service
agencies, or the government, to the public.
Examples of identity verification functions that may be
captured by the proposed expanded definition include--
• supporting broader provision of national police
checks; and
• verifying identity for the purposes of checking it
against a Victorian register of information; and
• verifying identity for the purposes of a
government service or program to support access
to certain information or payments.
As it is not possible to define all of the possible identity
verification functions of service agencies, the more
expansive definition will also allow functions to be
prescribed if they do not fall within the defined list in
the Principal Act.
In addition to the limits in the new definition of identity
verification function in the Principal Act, the
Parliament's oversight and scrutiny of any future
regulations prescribing further identity verification
functions, if required, will ensure they remain
appropriate.
The power for the Governor in Council to make
regulations under the Principal Act to prescribe further
customer service functions is set out in section 58 of
that Act. The regulations under section 58 of the
Principal Act may be of general or limited application.
They may also prescribe which aspects or types of
identity verification function are to be prescribed,
for example, the digital or non-digital aspects, or the
whole or part of an express or implied statutory or
non-statutory identity verification function under law.
7
Any regulations to prescribe additional identity
verification functions will be subject to ordinary
legislative and parliamentary processes, requirements
and scrutiny.
• official information document--the definition is being
amended to--
• refer to a service agency and service agency head
rather than a public entity to align the definition
with other provisions of the Principal Act; and
• extend the application of the definition to
non-Victorian government agencies and non-
Victorian government agency heads, to align the
definition with changes to ensure the Service
Victoria CEO can perform required functions on
behalf of non-Victorian government agencies;
and
• remove the requirement for information to be
given under an enactment (being an Act or
subordinate instrument, as defined in the
Interpretation of Legislation Act 1984) to
provide Service Victoria with more flexibility in
performing statutory functions (express or
implied), as well as any non-statutory functions
under common law, unwritten law, or the
executive power or another law of the State or of
the Commonwealth or of another State or
Territory.
• service agency head--the definition is being amended
to make technical changes to--
• expand the definition to include, in the case of a
Minister, that Minister, to clarify a Minister can
be responsible for customer service functions or
identity verification functions under a law, in
addition to a service agency, but they will also be
the service agency head. This aligns with
changes to the definition of service agency in
clause 5;
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• align the meaning of "chief executive officer" of
a public entity that is a body corporate with the
equivalent definitions of "public entity head" and
similar definitions in the Public Administration
Act 2004. This also aligns with the changes to
the definition of official information document in
clause 4;
• clarify that where a service agency is a Council,
the chief executive officer of the Council is the
service agency head so it is clear with whom the
Service Victoria CEO can enter into agreements
with for the delivery of a Council's customer
service functions or identity verification
functions under new Parts 2A and 3A, and so it
is clear when a Council can delegate or authorise
the Service Victoria CEO to perform a customer
service function or identity verification function
under new Parts 2B and 3B. The Minister will
still be required to seek the agreement of the
Council itself for the purposes of a transfer of a
customer service function or identity verification
function under Parts 2 and 3 as per section 58 of
the Principal Act; and
• enable a service agency head to be prescribed in
regulations with respect to a person prescribed to
be a service agency, to ensure there is an ability
to clarify who the head of an agency is for any
current or future unique governance structures
that are not captured by the existing definition of
service agency head.
The ability for the Governor in Council to make
regulations under the Principal Act to prescribe service
agency heads is set out in section 58 of that Act. Any
regulations to prescribe additional service agency heads
will be subject to ordinary legislative and parliamentary
processes, requirements and scrutiny.
• service agency Minister--the definition is being
amended to substitute the words "service agency
function" with "customer service function or identity
9
verification function". This is a technical amendment
to remove a defined term which is being repealed.
• transaction--the existing definition, which refers
to the meaning of "transaction" in the Electronic
Transactions (Victoria) Act 2000, is being substituted
with a revised, more expansive definition that will
include--
• any transaction in the nature of a contract,
agreement, application, registration or other
arrangement; and
• any statement, declaration, demand, notice or
request, including an offer and the acceptance of
an offer, that the parties are required to make or
choose to make in connection with the formation
or performance of a contract, agreement,
application, registration or other arrangement;
and
• any transaction of a non-commercial nature.
These changes will clarify that a transaction for the
purposes of the Principal Act also includes an
"application" and "registration". This is a technical
improvement to the Principal Act as the definition of
"transaction" in the Electronic Transactions (Victoria)
Act 2000 is not clearly aligned with other provisions of
the Principal Act which refer to an "application" or
"registration".
The following definitions are inserted by the Bill into the
Principal Act--
• digital token--this definition refers to "a digital version
of an authority or official information document that is
accessible through a software application on an
electronic device". This definition provides clarity to
the operation of the provisions relating to the delivery of
authorities and official information documents in new
Part 5A in the form of a digital token to ensure they
apply to authorities or official information documents
that are accessible through software on an electronic
device. This will enable a digital token to be delivered
to, and displayed on, a person's home computer, a
10
mobile phone, handheld device, or any other electronic
device. This ensures the reforms are broadly
technology neutral to apply to a range of technologies.
• electronic document--this definition refers to
"a communication of information in the form of data,
text or images by means of guided or unguided
electromagnetic energy, or both". This definition
provides clarity to the operation of the provisions
relating to the delivery of authorities and official
information documents in new Part 5A in the form of an
electronic document. The definition is broad,
technology neutral and is applicable to range of
technologies.
• non-Victorian government agency--this definition
specifies the types of government agencies of the
Commonwealth or another State or Territory that the
Service Victoria CEO will be able to perform functions
on behalf of, or for, or in partnership with, being--
• the equivalent of a service agency that is
established by or under, or holds an office or
position under, the law of the Commonwealth or
another State or a Territory, but does not include
the equivalent of a special body other than the
police force of the Commonwealth or another
State or a Territory; or
• a prescribed entity or class of entity.
The definition includes agencies that are equivalent to
the types of Victorian government agencies that the
Service Victoria CEO can perform function on behalf
of and excludes the types of Victorian government
agencies that the Service Victoria CEO cannot perform
functions on behalf of. It also enables additional entities
or classes of entities to be prescribed as non-Victorian
government agencies. This allows any additional
non-Victorian agencies to fit within the definition of
non-Victorian government agency, to ensure they can
work with Service Victoria and the Service Victoria
CEO.
11
The power for the Governor in Council to make
regulations under the Principal Act to prescribe further
non-Victorian government agencies is set out in
section 58 of that Act. The regulations under section 58
of the Principal Act may be of general or limited
application and vary by place.
Any regulations to prescribe additional non-Victorian
government agencies will be subject to ordinary
legislative and parliamentary processes, requirements
and scrutiny.
• non-Victorian government agency head--this
definition specifies who is the non-Victorian
government agency head with respect to a
non-Victorian government agency, being--
• in the case of a Minister of the Commonwealth
or another State or a Territory--that Minister; or
• in the case of a body corporate that is a
non-Victorian government agency--the chief
executive officer (by whatever name called) of
the body corporate; or
• in the case of a police force of the
Commonwealth or another State or a Territory--
the head or chief commissioner of the police
force; or
• in the case of an entity or class of entity that is
prescribed to be a non-Victorian government
agency head--the person or class of person
prescribed to be the non-Victorian government
agency head for the non-Victorian government
agency; or
• in any other case, a person authorised under the
law of the Commonwealth or another State or a
Territory to enter into an agreement with the
Service Victoria CEO for the performance of
functions.
This definition is needed to specify the types of heads of
government agencies of the Commonwealth or another
State or Territory that the Service Victoria CEO will be
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able to perform functions on behalf of, for, or in
partnership with. The definition includes heads of
agencies of other Australian jurisdictions that are
equivalent to the heads of equivalent Victorian
government agencies that the Service Victoria CEO can
perform function on behalf of or for.
It also enables a person or class of persons to be
prescribed as the non-Victorian government agency
head with respect to any additional entities or classes
of entities that are prescribed as a non-Victorian
government agency. This allows required additional
persons to fit within the definition of non-Victorian
government agency head, to ensure they can work with
Service Victoria and the Service Victoria CEO.
The power for the Governor in Council to make
regulations under the Principal Act to prescribe further
non-Victorian government agencies heads is set out in
section 58 of that Act. The regulations under section 58
of the Principal Act may be of general or limited
application and vary by place.
Any regulations to prescribe additional non-Victorian
government agency heads will be subject to ordinary
legislative and parliamentary processes, requirements
and scrutiny.
• service agency database--this definition refers to a
database established and maintained under section 47A
or 47B, in which Service Victoria holds data on behalf
of a service agency or in accordance with a direction by
the Minister. This definition is needed to clearly
delineate between the data that is held in relation to the
functions that the Service Victoria CEO delivers to
customers (for example, customer service functions or
identity verification functions) under the Principal Act
and the new service agency databases that may be
established under the reforms in this Bill in clause 28.
It is not intended that the definition of a service agency
database would prevent a service agency database being
part of a broader or larger database, such as a sub-
database that is partitioned off from other sub-databases
in a broader or larger database.
13
The definition of service agency function in the Principal Act is
repealed by the Bill. This is a technical change that is linked to
the amended definition of service agency Minister.
Clause 5 amends the definition of service agency in section 4 of the
Principal Act to--
• include a Minister, as a Minister can hold customer
service functions or identity verification functions under
a law. This aligns with changes to the definition of
service agency head in clause 4 which clarifies the
Minister is also the service agency head; and
• enable additional persons to be prescribed as service
agencies provided they are not special bodies under the
Public Administration Act 2004. This allows
additional public sector agencies to fit within the
definition of service agency, to ensure they can work
with Service Victoria and the Service Victoria CEO,
which may be needed where they have special or unique
establishment arrangements under law. Bodies which
should be independent or quasi-independent, such as
independent officers of the Parliament like the
Independent Broad-based Anti-corruption Commission,
will not be able to be prescribed as a service agency;
and
• exclude Service Victoria as a service agency in
circumstances where an Administrative Office is
prescribed. This is a technical clarification to the
Principal Act so that Service Victoria itself cannot be a
service agency.
The ability for the Governor in Council to make regulations
under the Principal Act to prescribe service agencies is set out in
section 58 of that Act. The regulations under section 58 of the
Principal Act may be of general or limited application.
Any regulations to prescribe additional service agencies will be
subject to ordinary legislative and parliamentary processes,
requirements and scrutiny.
14
Clause 6 inserts new section 4A to specify that the Principal Act binds the
Crown in right of Victoria and, to the extent that the legislative
power of the Parliament permits, the Crown in all its other
capacities. This is a technical improvement to remove any
rebuttable presumption of statutory interpretation or doubt that
the Act would apply in whole or part to the State or its
instrumentalities.
Clause 7 substitutes subsection (1) in section 5 to provide that, subject to
section 5(3), the Minister and the service agency Minister may
agree for the Service Victoria CEO to perform a customer service
function that--
• is conferred on a service agency under an enactment
(whether express or implied); and
• is to be prescribed as a transferred customer service
function.
The purpose of clause 7 is to make a technical clarification that is
required to ensure that regulations can only be used to transfer
customer service functions that are conferred on a service agency
by Victorian legislation under Part 2 of the Principal Act. It is
linked to the change in clause 4 to substitute a new definition of
customer service function, which amongst other things, expands
the definition to include non-statutory functions and functions of
government agencies of the Commonwealth or another State or
Territory.
Clause 8 repeals Division 3 of Part 2, which is replaced with the new
section 54A inserted by clause 31. The purpose of clause 8 is
to give effect to new section 54A which will have the same
substantive effect, but it simplifies the Principal Act by locating
all of the provisions regarding the use and disclosure of regulated
information by a service agency to the Service Victoria CEO into
a single section. The repeal of Division 3 of Part 2 has no
substantive effect on the use and disclosure of regulated
information.
Clause 9 inserts the new Part "Part 2A--Performance of customer service
functions by agreement".
The purpose of new Part 2A is to provide for the performance of
statutory (express or implied) customer service functions and
non-statutory customer service functions under common law,
15
unwritten law, or the executive power or another law of the State
or of the Commonwealth or of another State or Territory by
Service Victoria and the Service Victoria CEO by agreement for
or on behalf of a service agency or a non-Victorian government
agency.
New Part 2A (and other clauses in this Bill) is not intended to
limit any existing duties, functions, powers, privileges, rights or
otherwise that Service Victoria or the Service Victoria CEO, as
an Administrative Office of a Department (or the Department of
Premier and Cabinet if there is no Administrative Office
prescribed) and Administrative Office Head respectively, may
have under the Public Administration Act 2004, or under any
other law including common law, unwritten law, or the executive
power of the State.
New section 9A in Part 2A sets out how a service agency and
the Service Victoria CEO can enter into agreements for the
performance of customer service functions of a service agency.
New subsection (1) of section 9A in Part 2A will enable the
Service Victoria CEO and a service agency head, or a person
authorised by the service agency head, to agree in writing for the
Service Victoria CEO to perform a customer service function for
or on behalf of that service agency or service agency head.
New subsection (2) of section 9A in Part 2A will empower the
Service Victoria CEO to perform a customer service function that
is the subject of an agreement under subsection (1) for or on
behalf of the service agency when the agreement commences.
New subsection (3) of section 9A in Part 2A provides that
subsection (2) applies despite anything to the contrary in the law
(if any) that confers the customer service function on the service
agency. This ensures that, if there is a law that confers the
customer service function on the service agency, the Service
Victoria CEO can perform the functions for or on behalf of the
service agency despite anything to the contrary in that law.
This also is intended to cover circumstances where service
agency legislation is silent or unclear as to whether they may
engage another part of the public sector or the Service Victoria
CEO to assist them in the delivery or performance of their
customer service functions.
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New subsection (4) of section 9A in Part 2A will require that the
Service Victoria CEO perform the customer service function in
accordance with the terms of the agreement.
New section 9A in Part 2A does not specify what must be
included in an agreement or the form of the agreement.
However, in practice, agreements could simply allow the Service
Victoria CEO to perform a function or the agreement could cover
a range of administrative matters with a service agency. The
level of detail required for any particular agreement for the
performance of a function will be determined entirely by
agreement between the Service Victoria CEO and the service
agency head.
It is expected that operational documentation and any details that
are subject to change may be recorded elsewhere, or in a separate
schedule not part of the statutory agreement. The Bill ensures
Service Victoria and service agencies can take a collaborative
approach to working together to deliver outcomes for the public
when performing functions by way of agreement.
New section 9B in Part 2A sets out how a non-Victorian
government agency head and the Service Victoria CEO can enter
into agreements for the performance of the customer service
functions of a non-Victorian government agency.
New subsection (1) of section 9B in Part 2A enables the Service
Victoria CEO and a non-Victorian government agency head, or a
person authorised by the non-Victorian government agency head,
to agree in writing for the Service Victoria CEO to perform a
customer service function for or on behalf of or in partnership
with that non-Victorian government agency.
New section 9B does not specify what must be included in an
agreement or the form of the agreement. However, in practice,
agreements could simply deal with allowing the Service Victoria
CEO to perform the function or they could cover a range of
administrative matters with a non-Victorian government agency
head. The level of detail required for any particular agreement
for the performance of a function will be determined entirely by
the agreement between the Service Victoria CEO and the
non-Victorian government agency head.
New subsection (2) of section 9B in Part 2A will empower the
Service Victoria CEO to perform a customer service function that
is the subject of an agreement under subsection (1) on behalf of
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the non-Victorian government agency when the agreement
commences, in accordance with the agreement made under
subsection (1).
It is expected that operational documentation and any details that
are subject to change may be recorded elsewhere, or in a separate
schedule not part of the agreement. The Bill ensures Service
Victoria and non-Victorian government agencies can take a
collaborative approach to working together to deliver outcomes
for the public when performing functions by way of agreement.
New subsection (3) of section 9B in Part 2A provides that
subsection (2) applies subject to the law that confers the customer
service function on the non-Victorian government agency
(if any). This is different to the provisions for agreements with
Victorian service agency heads as it is not possible for the
Parliament to change the operation of laws of other jurisdictions
and the Service Victoria CEO will be subject to the laws of those
jurisdictions.
Clause 9 also inserts the new Part "Part 2B--Delegation,
authorisation and sub-delegation of customer service functions".
The purpose of new Part 2B is to permit a service agency or
service agency head to delegate to, or authorise the performance
by, the Service Victoria CEO of customer service functions under
other Acts or subordinate instruments, including in circumstances
where Victorian legislation limits a delegation or authorisation to
specific person(s) that do not include the Service Victoria CEO,
or where there may be ambiguity about whether an implied
statutory function or part of a statutory function may be delegated
or authorised. This is not intended to overcome a clear and
specific provision to the contrary that expressly prohibits the
Service Victoria CEO from delivering a specified customer
service function.
New section 9C of Part 2B provides that Part 2B applies despite
anything to the contrary in any other Act, other than the Charter
of Human Rights and Responsibilities Act 2006. This clarifies
that the Part is intended to apply despite other Victorian Acts or
subordinate instruments and will broaden the range of
circumstances in which service agencies can delegate to, or
authorise the performance by, the Service Victoria CEO of a
customer service function, removing the need for significant
further reform over time across individual Victorian Acts or
18
subordinate instruments to allow the Service Victoria CEO to be
delegated or authorised to perform statutory functions. It also
preserves the critical ongoing application of the Charter of
Human Rights and Responsibilities Act 2006.
New section 9D of Part 2B sets out circumstances in which a
service agency can delegate to, or authorise the performance by,
the Service Victoria CEO of customer service functions of that
service agency.
New subsection (1) of section 9D in Part 2B provides that
section 9D applies if--
• an enactment confers a function on a service agency or
service agency head; and
• the enactment permits the delegation or authorisation of
that function.
Subsection (2) of section 9D in Part 2B provides that a service
agency or a service agency head in writing may delegate to, or
authorise the performance by, the Service Victoria CEO of the
following functions--
• a customer service function under an enactment to
which this section applies, irrespective of whether the
Service Victoria CEO is a person, or belongs to a class
of person, to whom a function can be delegated or
authorised under that legislation, including a customer
service function that can be implied from, or forms part
of, a function to which this section applies; and
• a customer service function that may be implied from a
function under an enactment to which this section
applies, including where the Service Victoria CEO is
not a person or does not belong to a class of persons to
whom that function can be delegated or authorised
under the legislation, or where that function forms part
of a function to which this section applies; and
• a customer service function that forms part of a function
under an enactment to which this section applies,
including where the Service Victoria CEO is not a
person or does not belong to a class of persons to whom
that function can be delegated or authorised under the
19
legislation, or where that function can be implied from a
function to which this section applies.
This ensures that customer service functions can be delegated or
authorised to the Service Victoria CEO despite principles of
delegation that might otherwise prevent this from occurring.
Given the administrative nature of customer service functions,
these limitations are considered unnecessary in the circumstances
specified in this provision and can prevent the improvement of
public service delivery of those functions to Victorians.
New section 9E of Part 2B ensures that the Service Victoria CEO
may sub-delegate functions delegated under this Part. This is
necessary to enable the provisions to be operationalised by
Service Victoria.
Subsection (1) of new section 9E of Part 2B provides that the
Service Victoria CEO may, subject to any conditions specified in
the relevant delegation, sub-delegate a customer service function
that has been delegated to the Service Victoria CEO to a person
or class of persons that the Principal Act under section 52 permits
the Service Victoria CEO to delegate to. This is necessary to
ensure that the Service Victoria CEO can sub-delegate functions
to staff or employees or other prescribed persons as required to
deliver the functions in accordance with a delegation, even where
the conferring legislation does not permit sub-delegation.
Subsection (2) of new section 9E in Part 2B states that section 42
and 42A of the Interpretation of Legislation Act 1984 apply to
a sub-delegation authorised by section 9E in the same way as
they apply to a delegation. These provisions clarify the operation
of statutory powers of sub-delegation by the Service Victoria
CEO.
It is important to note that the functions that may be sub-
delegated by the Service Victoria CEO are restricted to
administrative customer service functions, and are subject to the
restrictions on the use of information with respect to those
functions and relevant offences in the Principal Act as amended
by this Bill.
Clause 10 substitutes subsection (1) in section 10 of the Principal Act to
provide that, subject to subsection (3), the Minister and the
service agency Minister may agree for the Service Victoria CEO
to perform an identity verification function that--
20
• is conferred on a service agency under an enactment
(whether express or implied); and
• is to be prescribed as a transferred identity verification
function.
The purpose of Clause 10 is to make a technical clarification that
is required to ensure that regulations can only be used to transfer
identity verification functions that are conferred on a service
agency by Victorian legislation under Part 3 of the Principal Act.
It is linked to the change in clause 4 to substitute a new definition
of "identity verification function", which amongst other things,
expands the definition to include non-statutory functions and
functions of government agencies of the Commonwealth or
another State or Territory.
Clause 11 amends section 13 to insert new subsection (3), which clarifies
that a person or a service agency head, when performing a
transferred identity verification function that has been delegated
from the Service Victoria CEO back to the service agency head
under section 13(1), is not required to comply with the identity
verification standards under Part 6 of the Service Victoria Act.
The purpose of clause 11 is to make a technical clarification,
recognising that only the identity verification standards are
intended to apply to the Service Victoria CEO. This will support
service agencies to continue performing a function alongside the
Service Victoria CEO using the existing processes of that agency,
which may not currently align with the Service Victoria identity
verification standards.
Clause 12 repeals Division 3 of Part 3, which is replaced by the new
section 54A inserted by clause 31. The purpose of clause 12 is to
give effect to new section 54A, which will have the same
substantive effect, but it simplifies the Principal Act by locating
all of the provisions regarding the use and disclosure of regulated
information by a service agency to the Service Victoria CEO into
a single section. The repeal of this Division has no substantive
effect on the use and disclosure of regulated information.
21
Clause 13 inserts new Part "Part 3A--Performance of identity verification
functions by agreement".
The purpose of new Part 3A is to provide for the performance of
statutory (express or implied) identity verification functions and
non-statutory identity verification functions under common law,
unwritten law, or the executive power or another law of the State
or of the Commonwealth or of another State or Territory by
Service Victoria and the Service Victoria CEO by agreement for
or on behalf of a service agency or a non-Victorian government
agency.
This new Part (and other clauses in this Bill) is not intended to
limit any existing duties, functions, powers, privileges, rights or
otherwise that Service Victoria or the Service Victoria CEO, as
an Administrative Office of a Department (or the Department of
Premier and Cabinet if there is no Administrative Office
prescribed) and Administrative Office Head respectively, may
have under the Public Administration Act 2004, or under any
other law including common law, unwritten law, or the executive
power of the State, or another State or the Commonwealth.
New section 14A in Part 3A sets out how a service agency and
the Service Victoria CEO can enter into agreements for the
performance of identity verification functions of a service
agency.
New subsection (1) of section 14A in Part 3A will enable the
Service Victoria CEO and a service agency head, or a person
authorised by the service agency head, to agree in writing for the
Service Victoria CEO to perform an identity verification function
for or on behalf of that service agency or service agency head.
New subsection (2) of section 14A in Part 3A will empower the
Service Victoria CEO to perform an identity verification function
that is the subject of an agreement under subsection (1) for or on
behalf of the service agency when the agreement commences.
New subsection (3) of section 14A in Part 3A provides that, if
there is a law that confers the identity verification function on the
service agency, subsection (2) operates to enable the Service
Victoria CEO to perform the functions for or on behalf of the
service agency despite anything to the contrary in that law. This
ensures that, if there is a law that confers the identity verification
function on the service agency, the Service Victoria CEO can
22
perform the functions for or on behalf of the service agency
despite anything to the contrary in that law.
This is intended to cover instances where service agency
legislation is silent or unclear as to whether they may engage
another part of the public sector or the Service Victoria CEO to
assist them in the delivery or performance of their identity
verification functions.
New subsection (4) of section 14 in Part 3A will require that the
Service Victoria CEO perform the identity verification function
in accordance with the terms of the agreement.
New section 14A in Part 3A does not specify what must be
included in an agreement or the form of agreement. However, in
practice, agreements could simply deal with allowing the Service
Victoria CEO to perform the identity verification function.
Explanatory material above regarding new section 9A also
applies to this section.
New section 14B in Part 3A sets out how a non-Victorian
government agency head and the Service Victoria CEO can enter
into agreements for the performance of the identity verification
functions of a non-Victorian government agency.
New subsection (1) of section 14B in Part 3A will enable the
Service Victoria CEO and a non-Victorian government agency
head, or a person authorised by the non-Victorian government
agency head, to agree in writing for the Service Victoria CEO to
perform an identity verification function for or on behalf of non-
Victorian government agency.
New section 14B will not specify what must be included in an
agreement or the form of agreement. However, in practice,
agreements could simply deal with allowing the Service Victoria
CEO to perform the function. Explanatory material above
regarding new section 9B(2) also applies to this section.
New subsection (2) of section 14B in Part 3A will empower the
Service Victoria CEO to perform an identity verification function
that is the subject of an agreement under subsection (1) on behalf
of the government agency of the Commonwealth or another State
or Territory when the agreement commences, in accordance with
the agreement made under subsection (1).
23
New subsection (3) of section 14B in Part 3A provides that
subsection (2) applies subject to the law that confers the identity
verification function on the non-Victorian government agency
(if any). This is different to the provisions for agreements with
Victorian service agency heads as it is not possible for the
Parliament to change the operation of laws of other jurisdictions
and the Service Victoria CEO will be subject to the laws of those
jurisdictions.
Clause 13 also inserts the new Part "Part 3B--Delegation,
authorisation and sub-delegation of identity verification
functions".
The purpose of new Part 3B is to permit a service agency or
service agency head to delegate to, or authorise the performance
by, the Service Victoria CEO of identity verification functions
under other Acts or subordinate instruments, including in
circumstances where the legislation limits a delegation or
authorisation to specific person(s) that do not include the Service
Victoria CEO, or where there may be ambiguity about whether
an implied statutory function or part of a statutory function may
be delegated or authorised. This is not intended to overcome a
clear and specific provision to the contrary that expressly
prohibits the Service Victoria CEO from delivering a specified
identity verification function.
New section 14C provides that Part 3B applies despite anything
to the contrary in any other Act, other than the Charter of
Human Rights and Responsibilities Act 2006. This clarifies
that the Part is intended to apply despite other Victorian Acts or
subordinate instruments and will broaden the range of
circumstances in which service agencies can delegate to, or
authorise the performance by, the Service Victoria CEO of an
identity verification function, removing the need for significant
further reform over time across individual Victorian Acts or
subordinate instruments to allow the Service Victoria CEO to be
delegated or authorised to perform statutory functions. It also
preserves the critical ongoing application of the Charter of
Human Rights and Responsibilities Act 2006.
New section 14D sets out circumstances in which a service
agency can delegate to, or authorise the performance by, the
Service Victoria CEO of identity verification functions of that
service agency.
24
New subsection (1) of section 14D in Part 3A provides that
section 14D applies if--
• an enactment confers a function on a service agency or
service agency head; and
• the enactment permits the delegation or authorisation of
that function.
Subsection (2) of section 14D in Part 3A provides that a service
agency or a service agency head in writing may delegate to, or
authorise the performance by, the Service Victoria CEO of the
following functions--
• an identity verification function under an enactment to
which this section applies, irrespective of whether the
Service Victoria CEO is a person, or belongs to a class
of person, to whom functions can be delegated or
authorised under that legislation, including an identity
verification function that can be implied from, or forms
part of, a function to which this section applies;
• an identity verification function that may be implied
from a function under an enactment to which this
section applies, including where the Service Victoria
CEO is not a person or does not belong to a class of
persons to whom that function can be delegated or
authorised under the legislation, or where that function
forms part of a function to which this section applies;
and
• an identity verification function that forms part of a
function under an enactment to which this section
implies, including where the Service Victoria CEO is
not a person or does not belong to a class of persons to
whom that function can be delegated or authorised
under the legislation, or where that function can be
implied from a function to which this section applies.
This ensures that identity verification functions can be delegated
or authorised to the Service Victoria CEO despite principles of
delegation that might otherwise prevent this from occurring.
Given the nature of identity verification functions and the Service
Victoria CEO's role in verifying identity across government
services, these limitations are considered unnecessary and may
inhibit improved public service delivery to customers.
25
New section 14E of Part 3B ensures that the Service Victoria
CEO may sub-delegate functions delegated under this Part.
This is necessary to enable the provisions to be operationalised.
Subsection (1) of new section 14E of Part 3B provides that the
Service Victoria CEO may, subject to any conditions specified in
the relevant delegation, sub-delegate an identity verification
function that has been delegated to the Service Victoria CEO to a
person or class of persons that the Principal Act under section 52
permits the Service Victoria CEO to delegate to. This is
necessary to ensure that the Service Victoria CEO can
sub-delegate functions to staff or employees or other prescribed
persons as required to deliver the function in accordance with a
delegation, even where the conferring legislation does not permit
sub-delegation.
Subsection (2) of new section 14E in Part 3B states that
section 42 and 42A of the Interpretation of Legislation
Act 1984 apply to a sub-delegation authorised by section 14F in
the same way as they apply to a delegation. These provisions
clarify the operation of statutory powers of sub-delegation by the
Service Victoria CEO and ensure they can be operationalised by
Service Victoria.
It is important to note that the functions that may be
sub-delegated by the Service Victoria CEO are restricted to
identity verification functions, including deciding whether
documents provided by a customer meet the requirements of the
Service Victoria identity verification standards.
Clause 13 also inserts the new Part "Part 3C--Performance of
functions--Ministerial direction".
The purpose of Part 3C is to provide a flexible and transparent
mechanism to enable the Service Victoria CEO to perform any
additional functions relating to the delivery of government
services at the direction of the Minister responsible for
administering the Principal Act. It is intended to allow the
Service Victoria CEO to deliver functions relating to the delivery
of government services, including where there is no existing
customer service or identity verification function held by a
service agency or non-Victorian government agency, to meet new
or emerging priorities of Government in delivering public
services across the public sector. It will also ensure any
26
information collected in performing these additional functions is
protected under the information protections in the Principal Act.
Subsection (1) of new section 14F in Part 3B will enable the
Minister responsible for administering the Principal Act to direct
the Service Victoria CEO, in writing, to perform a specified
function (including but not limited to functions that fit within the
definition of customer service functions or identity verification
functions) for the purposes of the delivery of Government
services.
Subsection (2) of new section 14F in Part 3C specifies that a
function specified in a Ministerial direction made under
subsection (1) is in addition to any other functions the Service
Victoria CEO has under the Principal Act or any other law.
This clarifies that the Service Victoria CEO can perform
functions without a Ministerial direction, where it is otherwise
permitted under law. For example, a ministerial direction can
also be given under the Public Administration Act 2004 to the
Service Victoria CEO as an Administrative Office Head.
Subsection (3) of new section 14F in Part 3C specifies that the
Service Victoria CEO must comply with a direction given by the
Minister according to its terms.
Subsection (4) of new section 14F in Part 3C requires a
Ministerial direction be published in the Victoria Government
Gazette, as soon as reasonably practicable after it is made. This
will ensure a level of transparency over the use of the Ministerial
direction power to confer additional functions in relation to the
delivery of government services on the Service Victoria CEO.
Subsection (5) of new section 14F in Part 3C provides that a
direction will not be invalid merely because of a failure to
comply with the requirement to publish the direction. This is to
ensure that the publication requirement does not limit the ability
of the Service Victoria CEO to rapidly deliver services in
accordance with a Ministerial direction. It is not intended to
mean the Minister must not or should not publish a direction in
any circumstances.
27
Clause 14 amends section 15 of the Principal Act to clarify and expand the
functions of the Service Victoria CEO.
The following functions are inserted to support the changes that
the Bill makes to the functions of the Service Victoria CEO, and
to clarify existing functions that the Service Victoria CEO has
under the Principal Act to--
• perform customer service functions and identity
verification functions under an agreement with, or
authorised or delegated to the Service Victoria CEO by,
a service agency or a non-Victorian government agency
under new Parts 2A, 2B, 3A and 3B; and
• perform any functions conferred by Ministerial direction
under new Part 3C; and
• establish and maintain the Service Victoria database;
and
• establish and maintain service agency databases on
behalf of service agencies or at the direction of the
Minister; and
• perform functions that are ancillary or related to the
above new functions; and
• perform any functions conferred by or under any other
law.
The purpose of clause 14 is to reflect the broadened scope of
functions that the Service Victoria CEO can perform.
Clause 14 is not intended to amend section 15 to exhaustively list
the functions of the Service Victoria CEO.
Further, clause 14 (and other clauses in this Bill) is not intended
to limit any existing duties, functions, powers, privileges, rights
or otherwise that Service Victoria or the Service Victoria CEO,
as an Administrative Office of a Department (or the Department
of Premier and Cabinet if there is no Administrative Office
prescribed) and Administrative Office Head respectively, may
have under the Public Administration Act 2004, or under any
other law of the State or the Commonwealth or another State or
Territory, including the common law, unwritten law, or any
executive power.
28
Clause 15 substitutes section 16(2) of the Principal Act to provide that, for
the purposes of performing a customer service function or
identity verification function that is conferred on a service agency
under an enactment, the Service Victoria CEO may exercise any
power (whether express or implied) under the enactment that is
necessary or convenient to be exercised to perform that customer
service function or identity verification function.
This is necessary to ensure that the Service Victoria CEO can
exercise statutory powers of a service agency where it is
necessary or convenient to perform a customer service function
or identity verification function that the Service Victoria CEO is
performing for or on behalf of the service agency.
Clause 16 inserts the new part "Part 4A--Service Victoria accounts".
Section 18A in new Part 4A empowers the Service Victoria CEO
to require a person to create a Service Victoria account for the
purpose of the Service Victoria CEO performing a function under
the Principal Act, where the Service Victoria CEO considers it to
be reasonably necessary for the performance of that function.
The purpose of clause 16 is to ensure the Service Victoria CEO
can require a person to create a Service Victoria account where
reasonably necessary for the performance of a function under the
Act.
This is in recognition that a government agency often requires an
ongoing relationship with a customer through a Service Victoria
account to perform a function or deliver a public service. For
example, a licence in the form of a digital token must be linked to
an account in order to be securely delivered and uploaded to the
person to whom it belongs through the Service Victoria mobile
application.
This provision does not limit customers' choice to transact as a
guest for any services that can be performed without a Service
Victoria account and they can close their account at any time.
It also does not prevent Service Victoria, a service agency or a
non-Victorian government agency from providing alternative
methods of delivering a function or service to a person.
Clause 17 amends section 19 of the Principal Act, which requires the
Service Victoria CEO to comply with the customer service
standards when performing certain types of functions.
29
The purpose of clause 17 is to insert paragraphs (ab) and (ac) into
section 19 and amends paragraph (b) to refer to the new Parts, to
require the Service Victoria CEO to comply with customer
service standards when performing customer service functions
under an agreement under new Part 2A, by delegation or
authorisation under new Part 2B or another enactment, or
conferred by a Ministerial direction under new Part 3C, or
functions ancillary to customer service functions delivered under
those provisions.
This change ensures consistent delivery of services through
Service Victoria, and ensures customers have a consistent
experience of engaging with Service Victoria across transactions
for different agencies.
Clause 17 also repeals the example at the foot of section 19 of the
Principal Act. This is a consequential change as a result of new
section 56A, which is being inserted by clause 32.
Clause 18 amends section 22 of the Principal Act, which sets out the
circumstances in which the Service Victoria CEO can collect
customer service information and account information.
Subclause (1) amends subsections 22(1) and (2)(a) to omit the
words "for an individual to whom that information relates".
This clarifies that, where it is necessary to perform a function
under the Principal Act, the Service Victoria CEO may collect
customer service information and account information from an
individual that relates to another individual.
The purpose of clause 18 is to change the minimum standards in
section 22, to clarify that there are circumstances where it may be
impracticable or impossible for another person to directly provide
information to the Service Victoria CEO and another person
may need to do so on their behalf with their consent. This is
aimed at making public services more accessible, and increases
opportunities for customer choice to be implemented by Service
Victoria, when services are being delivered by the Service
Victoria CEO.
This will also ensure the minimum standards do not unreasonably
restrict the delivery of services where information is required
about other people. For example, in the scenario where one
business partner is applying for a licence that will be held by
themselves and another business partner, it will allow the Service
Victoria CEO to collect information about both individuals.
30
Even with the changes contained in clause 18 regarding
subsection 22(1) and (2)(a), the collection of information about
another individual must still be done with consent of the other
individual and in compliance with any other requirements under
the Privacy and Data Protection Act 2014 and Health Records
Act 2001.
Subclause (2) amends subsection 22(2)(b) to insert "to whom the
Service Victoria account relates". This clarifies that the Service
Victoria CEO will only be able to collect account information for
the purpose set out in section 22(2)(a) where the individual that
the account relates to has consented. This is to ensure that an
individual can control information that is stored in their account.
Clause 19 amends section 23 of the Principal Act, which sets out the
circumstances in which the Service Victoria CEO can use or
disclose certain types of information.
Clause 19 amends section 23 to--
• insert new subsection (1)(ab), which provides "for any
purpose and the individual to whom that information
relates has consented to the use or disclosure for that
purpose; or"; and
• substitute subsection (2)(a) for "for any purpose and
the individual to whom that information relates has
consented to the use or disclosure for that purpose; or".
The purpose of clause 19 is to expand the circumstances in which
the Service Victoria CEO can use and disclose customer service
information and account information, to include where the
individual to whom the information relates has provided their
consent to the use or disclosure for that purpose.
This will ensure customers can control how their information is
handled by the Service Victoria CEO and will align the Principal
Act with the information privacy principles and health privacy
principles under the Privacy and Data Protection Act 2014 and
the Health Records Act 2001, which permit use or disclosure of
an individual's personal or health information for any purpose
with the relevant individual's consent.
Clause 20 amends section 24 of the Principal Act, which limits the period of
time that the Service Victoria CEO can retain certain types of
information.
31
Subclause (1) amends section 24(1), (2) and (3) to substitute
"earlier" for "later". This amendment addresses an issue with the
Principal Act that prevents the Service Victoria CEO complying
with a law that requires an incomplete application for an
authority or official information document, customer service
information or account information to be retained for necessary
periods of time under law.
Subclause (2) substitutes subsection 24(1)(a) with "the
incomplete application no longer being required to perform a
function under the Act; or". Together with the amendment
in subclause (1), this amendment ensures that the Service
Victoria CEO can retain incomplete applications for authorities
or official information for as long as it is necessary to perform a
function under the Principal Act or to satisfy any requirement to
retain that information under law.
Subclause (3) substitutes subsections 24(2)(a) and (3)(a) with
"that information no longer being required to perform a function
under the Act; or". Together with the amendment in subclause
(1), this amendment ensures that the Service Victoria CEO can
retain customer service information and account information for
as long as it is necessary to perform a function under the
Principal Act or to satisfy any requirement to retain that
information under law.
Subclause (4) inserts an example into the foot of section 24,
providing "For example, the Service Victoria CEO may be
required to keep information that is a public record within the
meaning of the Public Records Act 1973 for any period
specified by the standards established under section 12 of that
Act.".
This provides an example of the type of law that may require the
Service Victoria CEO to retain information for a period of time
longer than what is necessary to perform a function under the
Principal Act.
Clause 21 inserts new Part "Part 5A--Authorities and official information
documents".
The purpose of new Part 5A is to support the use of electronic
documents and digital tokens that are delivered by the Service
Victoria CEO when performing customer service functions under
a Victorian enactment. This is not intended to prevent digital
tokens being delivered under other laws, including laws of the
32
Commonwealth or another State or Territory by the Service
Victoria CEO or Service Victoria.
New section 24A in Part 5A ensures that the Service Victoria
CEO can perform customer service functions that require
delivery of an authority or official information document by
delivering electronic documents or digital tokens.
New subsection (1) of section 24A in Part 5A provides that,
subject to satisfying the requirements in subsection (2), if a
customer service function requires the delivery, giving, grant or
issue (however described) of an authority or official information
document under an enactment, the Service Victoria CEO, in
performing the function, may satisfy that requirement by
delivering the authority or official information document in a
hard copy, an electronic document, or a digital token.
This is intended to clarify that the Service Victoria CEO can
satisfy requirements to deliver authorities or official information
documents electronically, without having to rely on the
provisions of the Electronic Transactions (Victoria) Act 2000
or another enactment.
New subsection (2) of section 24A in Part 5A provides that the
Service Victoria CEO must deliver the authority or official
information document in the form agreed with the service agency
head, or the person authorised by the service agency head, or
otherwise in accordance with any agreement, authorisation,
delegation, direction, or regulations that enables the Service
Victoria CEO to perform the customer service function. This
ensures that, where functions are being delivered for or on behalf
of a service agency, non-Victorian government agency or
Minister, the Service Victoria CEO must deliver an authority or
official information document in the form agreed between the
parties. It does not prevent an agreement, authorisation,
delegation, direction or regulation that may require the Service
Victoria to stop delivering a digital token.
New section 24B in Part 5A enables authorities or official
information documents delivered by the Service Victoria CEO to
satisfy requirements in other enactments to deliver the authorities
or official information documents.
Subsection (1) of new section 24B in Part 5A provides that,
subject to subsection (2), the delivering of an authority or official
information document under new section 24A is taken to satisfy
33
any requirement under an enactment in relation to the delivery,
giving, granting or issuing (however described) of the authority
or official information document.
Subsection (2) of new section 24B in Part 5A provides that the
authority or document must include all the information that is
required to be contained in or displayed on the authority or
document. This ensures that requirements under Victorian
legislation can be met via the delivery of an electronic document
or digital token by the Service Victoria CEO as long it complies
with requirements to contain or display relevant information
required by law. For example, if a Victorian law required a
licence to include a person's name, and the Service Victoria CEO
was able to deliver this in the form of an electronic document,
then the electronic document must also include the person's
name.
New section 24C in Part 5A ensures that a person can satisfy
requirements under other enactments with respect to an authority
or official information document delivered by the Service
Victoria CEO in any of the permitted forms being hard copy, an
electronic document or a digital token.
New section 24C in Part 5A provides that a requirement under an
enactment for a person to produce or display an authority or
official information document is taken to be satisfied, if--
• for a hard copy or electronic document, the person
produces or displays the authority or official
information document in the form delivered to them by
the Service Victoria CEO; or
• for a digital token, the person--
• produces or displays a current and valid digital
token delivered to the person by the Service
Victoria CEO; and
• if asked to do so, confirms the digital token is
current and valid, including by refreshing or
updating, or attempting to refresh or update, the
digital token to show that it is the most recent
version; and
• complies with any additional prescribed
requirements in relation to producing or
displaying the digital token.
34
This will, for example, enable a person to produce a digital
licence on their phone using the Service Victoria app or by using
Bluetooth technology. The person being shown the authority or
official information document is permitted to request the person
showing the document to confirm that the digital token is current
and valid, including by "updating" or "refreshing" their device to
ensure it is current and valid, and failure to do so will result in the
statutory requirement not being met. However, in circumstances
where this is not possible, for example because there is no
internet connection, the person will be able to display a digital
token and the person to whom it is being produced can take other
steps to verify its validity. How this will be done will be
determined by the relevant service agency head in consultation
with the Service Victoria CEO, and may vary depending on the
nature of the authority or official information document and the
technology available.
New section 24D in Part 5A ensures that a person can satisfy
requirements under other enactments with respect to surrendering
or destroying an authority or official information document
delivered by the Service Victoria CEO in the form of an
electronic document or digital token.
Subsection (1) of new section 24D in Part 5A provides
section 24D applies if an authority or official information
document has been delivered as an electronic document or a
digital token to a person by the Service Victoria CEO under
Part 5A.
Subsection (2) of new section 24D in Part 5A provides that a
requirement under an enactment to surrender or destroy (however
described) an authority or official information document is taken
to be satisfied if--
• the person destroys, deletes or otherwise surrenders the
authority or official information document so that it can
no longer be readily used or accessed by the person; or
• for a digital token, the Service Victoria CEO ceases to
deliver the digital token to the person.
This ensures that requirements under Victorian legislation to
surrender or destroy documents can be met regardless of the form
that they are provided by the Service Victoria CEO, and can be
met with regards to a digital token or electronic document if the
35
person destroys, deletes or otherwise surrenders the electronic
document or digital token so that it can no longer be used.
It also enables requirements under Victorian legislation to be met
if the Service Victoria CEO ceases to deliver a digital token,
because in those circumstances there will not be an authority or
official information document for the person to surrender or
destroy. This does not prevent the Service Victoria CEO from
ceasing the delivery of a digital token at the request of a person
who was the recipient of the token.
Clause 22 amends section 29 of the Principal Act, which limits the use of
temporary electronic identity credentials that are issued under the
Principal Act.
Subclause (1) substitutes the words "transferred customer service
function or transferred identity verification function" with
"transaction" in section 29. This addresses a technical issue with
the Principal Act which currently only allows a temporary
electronic identity credential to be used for one transferred
customer service function or transferred identity verification
function. This amendment ensures that a temporary electronic
identity credential can be used to verify identity for a transaction
that is delivered by the Service Victoria CEO, which may involve
any type of function that the Service Victoria CEO can perform
under the Principal Act.
Subclause (2) inserts the new section 29(2), which provides that a
temporary electronic identity credential may be used in relation
to more than one function if those functions are performed as part
of the same transaction. This is necessary to ensure that the
Service Victoria CEO has enough operational flexibility to
deliver efficient, user-friendly services to customers because
many government services involve more than one customer
service function or identity verification function and it is
inefficient to require a customer to verify their identity multiple
times for the purposes of the same transaction.
For example, the Bill would allow the Service Victoria CEO to
use a temporary electronic identity credential to better support
customers to work with people with disabilities. Customers may
seek to register under 2 different schemes, being a National
Disability Insurance Scheme worker screening check, and
registration as a disability worker through the Victorian
Disability Worker Commission. These 2 schemes include
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multiple identity verification functions and customer service
functions and the Bill avoids any unnecessary inefficiency by
ensuring there is no need to apply for multiple temporary
electronic identity credentials if all of the functions are
undertaken as part of a single transaction.
Clause 23 amends section 35 of the Principal Act, which sets out how an
electronic identity credential issued by the Service Victoria CEO
can be used as evidence of identity.
Subclause (1) substitutes the heading of section 35 with
"Effect of electronic identity credential". This is a technical
improvement to align the heading with the legal effect of the
section.
Subclause (2) substitutes "a transferred" with "an" in
section 35(1), to ensure that the application of subsection (1),
which establishes how the requirements of an identity
verification function can be met by the Service Victoria CEO,
is not limited to transferred identity verification functions.
Subclause (2) also inserts the words "for a transferred identity
verification function or an identity verification function that the
Service Victoria CEO is performing for or on behalf of a service
agency," before "the Service Victoria CEO" to clarify the
application of section 35(1)(a) only applies where Service
Victoria is performing an identity verification function for which
there is a service agency.
Subclause (3) inserts new section 35(1A) which provides that
subsection (1) applies despite anything to the contrary in the
enactment that confers the identity verification function on the
service agency.
This clarifies that an electronic identity credential can be relied
on as evidence of a person's identity, even in circumstances
where Victorian legislation has specific identity verification
requirements that do not align with the identity verification
process that Service Victoria must comply with under the
identity verification standards issued by the Minister under the
Principal Act. The level of assurance that will be required in
respect of an identity verification function will be subject to a
joint assessment between the relevant service agency and Service
Victoria. This will ensure that identity is verified using a risk and
evidence-based approach that is suitable to the specific service
being delivered.
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The purpose of clause 23 is to address any doubt as to whether
section 35(1) applies where service agencies have specific
identity verification requirements in their own enactment. It is
intended that the Service Victoria CEO is only subject to the
identity verification standards under the Principal Act and is not
required to meet identity verification requirements specified in
other Victorian legislation when issuing an electronic identity
credential.
The identity verification standards are a legislative instrument
made by the Minister under the Act and subject to the
Subordinate Legislation Act 1994. They are published in the
Victoria Government Gazette and tabled in Parliament.
Clause 24 amends section 37 of the Principal Act, which sets out the effect
of a suspension by the Service Victoria CEO of an electronic
identity credential on any timeframe that may apply to any
functions that that credential is being used for, to delete the
reference to "statutory".
The purpose of clause 24 is a technical change, to remove
references to "statutory" to ensure consistent use of terminology
in the Principal Act.
Clause 25 amends section 45 of the Principal Act, which sets out the
circumstances in which the Service Victoria CEO can collect
identity information.
Subclause (1) amends section 45 of the Principal Act to--
• omit "for an individual to whom that information
relates" in section 45(a). This clarifies that, where it is
necessary to perform a function under the Principal Act,
the Service Victoria CEO may collect identity
information from an individual that relates to another
individual;
• insert "to whom the identity information relates" after
"the individual" in section 45(b). This clarifies that
the Service Victoria CEO will only be able to collect
identity information for the purpose set out in
section 45(a) where the individual to whom that
information relates has consented.
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The purpose of the changes in clause 25 are to ensure the
minimum standards do not unreasonably restrict the delivery of
services where information is required about other people, while
maintaining privacy protections for people whose information is
provided to the Service Victoria CEO by ensuring their
information cannot be collected without their consent.
For example, in the scenario where one business partner is
applying for a licence that will be held by themselves and another
business partner, it will allow the Service Victoria CEO to collect
information about both individuals, where both individuals have
consented.
Clause 26 amends section 46 of the Principal Act, which sets out the
circumstances in which the Service Victoria CEO can use and
disclose identity information, an electronic identity credential,
information recorded on a credential or credential usage history.
Clause 26 substitutes section 46(1)(a) with "for any purpose and
the individual to whom that information or credential relates has
consented to the use or disclosure for that purpose; or".
The purpose of the changes in Clause 26 are to enable the Service
Victoria CEO to use and disclose identity information, an
electronic identity credential, information recorded on a
credential, or credential usage history, where the individual to
whom the information or credential relates has provided their
consent to the use or disclosure for that purpose. This will ensure
customers can control how their information is handled by the
Service Victoria CEO and will align the Principal Act with the
principles under the Privacy and Data Protection Act 2014 and
the Health Records Act 2001 which permit use or disclosure of
an individual's personal or health information for any purpose
with the relevant individual's consent.
Clause 27 amends section 47, which sets out the maximum periods of time
that the Service Victoria CEO can retain identity information.
Clause 27 inserts an example at the foot of section 47, providing
"For example, the Service Victoria CEO may be required to keep
information that is a public record within the meaning of the
Public Records Act 1973 for any period specified by the
standards established under section 12 of that Act". This
provides an example of the type of law that may require the
Service Victoria CEO to retain identity information for a period
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of time longer than what is otherwise required under the Principal
Act.
Clause 28 inserts the new Part "Part 6A--Service agency databases".
The purpose of new Part 6A is to enable the Service Victoria
CEO to establish and maintain databases, including on behalf of
service agencies, for the purposes of delivering government
services and to set out circumstances in which information that is
contained in these databases may be collected, used and
disclosed.
New section 47A in Part 6A will enable the Service Victoria
CEO to establish and maintain a database on behalf of a service
agency subject to the approval of the Minister responsible for the
Principal Act.
This will also ensure Service Victoria can create a separate data
holding or a sub-database within a broader or larger database to
support the functions of a particular service agency, or in relation
to functions the Service Victoria CEO is working with the service
agency to deliver.
New subsection (1) of section 47A in Part 6A provides that the
Service Victoria CEO may enter into an agreement with a service
agency head for the Service Victoria CEO to establish and
maintain a database for the purpose of recording information on
behalf of the service agency. The service agency will continue to
be responsible for the information in the database and for
administering the government service that the database is
established in relation to.
New subsection (2) of section 47A in Part 6A provides that the
Minister responsible for administering the Principal Act must
approve the establishment and maintenance of a database on
behalf of a service agency under subsection (1). It is not intended
that a specific instrument is required for the purposes of
obtaining the Minister's approval. This provision ensures that
there is a level of accountability and oversight before the Service
Victoria CEO establishes a database with another service agency.
New section 47B in Part 6A will enable the Service Victoria
CEO to establish and maintain a database for the Minister
responsible for administering the Principal Act.
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New section 47B provides that, if the Minister directs the Service
Victoria CEO to perform a function under section 14F, the
Minister may, in writing, direct the Service Victoria CEO to
establish and maintain a database for the purpose of recording
information necessary to perform a function.
For example, the Minister could direct the Service Victoria CEO
to perform a digital service to support discretionary grant
applications from persons that would be considered and
determined by another service agency. A database may need to
be established by the Service Victoria CEO to record the grant
application information and other relevant information on behalf
of the service agency.
New section 47C in Part 6A sets out the framework for how
information in a service agency database may be collected, used,
or disclosed.
Subsection (1) in new section 47C in Part 6A provides that the
Service Victoria CEO may disclose information in a service
agency database established and maintained under section 47A to
the service agency on behalf of which the database is established
and maintained.
This ensures that the Service Victoria CEO is not prevented from
sharing information with the persons responsible for
administering the government service to which it relates.
Subsection (2) in new section 47C in Part 6A provides that,
subject to the permitted circumstances set out in subsection (1),
the Service Victoria CEO must not collect, use or disclose
information in a service agency database, unless the collection,
access, use or disclosure is necessary--
• to perform any function under this Act or any other law
that is related to the purpose for which the database is
established and maintained; or
• for a person authorised by the Service Victoria CEO to
carry out administrative, technical or other functions
relating to the management, maintenance or auditing of
the database; or
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• in the case of a database under section 47A--
• to provide administrative or technical support to
the service agency for which the database is
established and maintained; or
• with the written authorisation of the service
agency for which the database is established and
maintained; or
• to comply with any other requirements under law.
This ensures that the Service Victoria CEO cannot collect, use or
disclose information in a service agency database, except in
limited circumstances that are necessary to enable the Service
Victoria CEO to develop or maintain the database, to perform
other related functions under the Principal Act, to support the
relevant service agency (if any) to ensure that they can operate
the database, and to ensure the Service Victoria CEO can comply
with any other requirements under law.
New section 47D in Part 6A specifies how the provisions of the
Principal Act apply to service agency databases.
Section 47D provides that, other than new Part 6A, Part 1, Part 7,
and Part 8 of the Principal Act do not apply to the use, disclosure
or retention of information recorded in a service agency database
under section 47A by the service agency on whose behalf the
database is established and maintained. This is necessary to
ensure that the service agency can use the database for the
purpose for which it was established, as though that database was
not established and maintained by the Service Victoria CEO,
without the risk of any limitation under the Principal Act. The
Service Victoria CEO is to act similarly to a custodian or
repository of the service agency's information in the service
agency database.
New section 47E in Part 6A specifies that a service agency on
whose behalf a service agency database is established and
maintained under section 47A may make changes to the
information in the database. This clarifies that, even though the
information is held on the Service Victoria platform, the service
agency still retains the right to change or update the information,
as required to deliver the government services to which it relates.
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New section 47F in Part 6A specifies that information in service
agency databases must be kept separate from other information in
the Service Victoria database and other service agency databases.
This ensures that there is a clear separation between information
held in a service agency database and information that the
Service Victoria CEO retains for the purposes of performing
other functions under the Principal Act. This also ensures data
can be moved back to the service agency or transferred to another
service agency if required, for example under machinery of
government changes.
New section 47G in Part 6A establishes the framework for the
transfer or closure of service agency databases.
Subsection (1) of new section 47G in Part 6A provides that, after
consultation with Service Victoria, a service agency head, or a
person authorised by the service agency head, may request the
Service Victoria CEO to, in whole or in part--
• close a service agency database established and
maintained on behalf of the service agency; or
• transfer the database to the service agency or a related
party; or
• with agreement of another service agency, transfer the
database to the other service agency or a related party.
This ensures that a service agency can ask the Service Victoria
CEO to close a database held on their behalf, for example if it is
no longer required to deliver a particular government service, or
to transfer the database to themselves, another service agency, or
a related party, being a person contracted to maintain a database
that is transferred under section 47G. A definition of "related
party" is inserted by subsection (6), which is described below.
Subsection (2) of new section 47G in Part 6A provides that, if a
service agency head or person makes a request under subsection
(1), the information in the service agency database must, in
accordance with the agreement under section 47A, be transferred
to the service agency, another service agency or a related party,
and be retained, destroyed or otherwise handled by the service
agency or the Service Victoria CEO in accordance with any
applicable law.
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Subsection (3) of new section 47G in Part 6A provides that the
Minister responsible for administering the Principal Act may
direct the Service Victoria CEO to, in whole or in part--
• close a service agency database established and
maintained under section 47B; or
• transfer a service agency database established and
maintained under section 47B to a Department or
Administrative Office or a related party, being a person
contracted to maintain a database that is transferred
under section 47H. A definition of "related party" is
inserted by subsection (6), which is described below.
Subsection (4) of new section 47G in Part 6A provides that the
Service Victoria CEO must comply with a request made, or
direction given, under subsection (1) or (3).
Subsection (5) of new section 47G in Part 6A provides that the
Principal Act no longer applies to a service agency database, or
part of a service agency database, that has been closed or
transferred, or the information that was recorded in the database
or part of the database.
This clarifies that once a service agency database or information
that was in a service agency database has been closed or
transferred, the Principal Act no longer applies. Once the Service
Victoria CEO no longer holds the database or information in the
database, it is no longer appropriate for provisions of the
Principal Act to regulate the database or information from a
service agency database. Other laws that apply, for example the
Privacy and Data Protection Act 2014 or Health Records
Act 2001 will continue to apply.
Subsection (6) of new section 47G in Part 6A inserts a definition
of "related party" to support the operation of section 47G.
related party means a person contracted by any of the following
to maintain a service agency database transferred under
section 47G--
• in relation to a database that is being transferred to the
service agency on whose behalf it was being established
and maintained, that service agency;
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• in relation to a database that is being transferred to
another service agency who has agreed to be transferred
the database, that service agency;
• in relation to a database that the Minister responsible for
administering the Principal Act has directed to be
transferred to a Department or Administrative Office,
the relevant Department or Administrative Office.
This definition ensures that data held for a service agency
database, or information in a database, can be transferred to
another party, for example another government cloud services
provider, so long as that party is contracted to maintain the
database on behalf of the relevant service agency.
New section 47H in Part 6A enables the Minister responsible for
administering the Principal Act to issue compulsory guidelines
with respect to the establishment and maintenance of service
agency databases.
Subsection (1) of new section 47H in Part 6A provides that the
Minister responsible for administering the Principal Act may
issue guidelines in relation to the establishment and maintenance
of service agency databases. For example, the Minister could
issue guidelines that require specific data protection or cyber
security standards are adhered to. The Victorian Protective Data
Security Standards under the Privacy and Data Protection
Act 2014 will also apply to data held by Service Victoria.
Subsection (2) of new section 47H in Part 6A provides that the
Service Victoria CEO must comply with any guidelines issued by
the Minister under subsection (1).
New section 47I in Part 6A enables the Minister responsible for
administering the Principal Act to, by instrument, delegate any
function or power conferred on that Minister under Part 6A to a
person employed under Part 3 of the Public Administration
Act 2004, excluding the Service Victoria CEO. This ensures the
Minister can delegate functions or powers relating to the service
agency databases to a suitably qualified person, if appropriate.
Clause 29 amends section 52 of the Principal Act, which allows the Service
Victoria CEO to delegate any function, power or duty of the
Service Victoria CEO to a prescribed person or class of persons.
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Clause 29 makes technical amendments to section 52 to--
• omit the words "or duty imposed" in the head of
section 52. The Principal Act defines functions to
include a duty so it does not need to be stated in this
clause;
• substitute "enactment" for "law" in section 52. This is
necessary to support the amendments (for example, in
clause 4 to substitute new definitions of "customer
service function" and "identity verification function",
and clause 13 which enables the Minister responsible
for the Principal Act to direct the Service Victoria CEO
to perform functions) that enable the Service Victoria
CEO to perform a broader range of functions conferred
by law, including non-statutory functions and functions
of government agencies of the Commonwealth or
another State or Territory; and
• inserts a new subsection 52(aa). The Service Victoria
(General) Regulations 2018 prescribe persons employed
under Part 3 of the Public Administration Act 2004 for
the purposes of section 52. Since passage of the
Principal Act, it has been determined that delegations
will, in almost all circumstances, be to persons
employed under Part 3 of the Public Administration
Act 2004. This amendment avoids the need to rely on
regulations made under the Principal Act to delegate
functions in these circumstances.
The purpose of the changes in Clause 29 is to make a range of
technical improvements to the Principal Act.
Clause 30 amends section 53 of the Principal Act, which requires the
Service Victoria CEO to provide reports to the Information
Commissioner and Health Complaints Commissioner on the
operation of Service Victoria in relation to personal information
and health information respectively and specifies the matters to
be included in a report.
The clause amends section 53(3)(e) to omit the reference to
"transferred". This will clarify that a report provided under
section 53 must include details of all identity verification
functions for which an electronic identity credential was used
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during the relevant period, regardless of how they are conferred
on the Service Victoria CEO.
Clause 31 inserts new section 54A "Use and disclosure of regulated
information by service agency".
The purpose of new section 54A is to replace sections 9 and 14 in
the Principal Act and extend the application of those provisions
beyond transferred customer service functions and transferred
identity verification functions to the new mechanisms included in
the Bill. This is necessary to ensure service agencies are
authorised to disclose necessary information to the Service
Victoria CEO to enable certain functions to be performed on
behalf of that service agency by agreement, authorisation,
delegation or direction.
Subsection (1) of new section 54A provides that section 54A
applies despite anything to the contrary in any other Act, other
than the Charter of Human Rights and Responsibilities
Act 2006, or law. This clarifies that the section is intended to
apply despite other Victorian Acts or subordinate instruments or
any other laws. It also preserves the critical ongoing application
of the Charter of Human Rights and Responsibilities
Act 2006.
Subsection (2) of new section 54A states that a service agency is
authorised to disclose regulated information (as defined in
section 3 of the Principal Act to mean "personal information,
health information, identifiers and unique identifiers") to the
Service Victoria CEO or a delegate of the Service Victoria CEO,
but only for the purpose of enabling the following functions to be
performed--
• transferred customer service functions and identity
verification functions;
• customer service functions and identity verification
functions under an agreement under Part 2A or Part 3A
or delegated or authorised under Part 2B or Part 3B or
another enactment;
• functions that the Minister directs the Service Victoria
CEO to perform under Part 3C;
• establishing and maintaining a service agency database;
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• functions that are ancillary to a function described
above.
This ensures service agencies can disclose regulated information
that is necessary to enable the Service Victoria CEO to deliver
functions on their behalf.
Section 55 of the Principal Act outlines how disclosures can be
made when the regulated information is subject to a secrecy
provision.
Clause 32 inserts a new section 56A "Refunds by Service Victoria CEO"
into the Principal Act.
The purpose of Clause 32 is to ensure the Service Victoria CEO
can pay refunds, where required, to persons who have made a
payment to the Service Victoria CEO, or a service agency
(through Service Victoria).
Subsection (1) of new section 56A provides that the Service
Victoria CEO may refund any amount of payment received by
the Service Victoria CEO to meet a requirement under law, or if
the Service Victoria CEO considers an error or mistake has been
made in the payment.
Subsection (2) provides that Consolidated Fund is appropriated
to the extent necessary for the purposes of subsection (1).
This ensures that, where a payment has been paid into the
Consolidated Fund, the Consolidated Fund is appropriated to
the extent that it is necessary to pay a refund under subsection
(1). It does not permit the appropriation of public funds in any
other circumstances.
This could be relevant, for example, where a person commences
an application and pays a relevant fee for a license to Service
Victoria, but then decides to discontinue the application as they
realise they had made the application in error for the wrong
transaction and requests a refund. This is required as Part V of
the Constitution Act 1975 and sections 9 and 17 of the
Financial Management Act 1994 require money received by the
State that would form part of the Consolidated Revenue, or is
otherwise received by the State (including Service Victoria) to be
paid into the Consolidated Fund (unless directed to another
location such as the Trust Fund or another fund or account under
law). Money can generally only be withdrawn from the
Consolidated Fund via an appropriation by law by the
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Parliament. This will avoid the need for a specific appropriation
on an annual basis or regular basis for simple refunds by the
Service Victoria CEO, or the amendment of a broad range of
service agency legislation to specifically authorise refunds where
it is ambiguous as to whether they are permitted where payments
are made in error or due to a mistake.
Clause 33 inserts a new Part 9 with the heading "Part 9--Transitional
provisions" into the Principal Act to deal with transitional
matters.
New section 59 in new Part 9 provides that any written
agreement entered into by a Service Victoria CEO and a service
agency (irrespective of whether it is with a service agency head
or just a service agency) is taken to be for the performance of a
specified customer service function or identity verification
function under new sections 9A and 14A.
New subsection (3) of section 59 provides that the transitional
provision will not apply to--
• any transferred customer service function or identity
verification function (being a function transferred under
regulations under Parts 2 or 3 of the Principal Act);
• a customer service function or identity verification
function performed under a delegation under an
enactment (for example, a function being performed by
a delegation to the Service Victoria CEO under another
Victorian law);
• a customer service function or identity verification
performed under an authorisation under an enactment
(for example, a function being performed under an
authorisation or implied authorisation to the Service
Victoria CEO under another Victorian law); or
• a function conferred on the Service Victoria CEO under
a statutory rule under another enactment (for example, a
function being performed by the Service Victoria CEO
under regulations under another Victorian Act).
It is intended this transitional provision will also apply to
agreements with service agencies under written instruments of
authorisation not made under an enactment and informal written
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agreements between the Service Victoria CEO and a service
agency.
The purpose of new section 59 is to ensure that, where the
Service Victoria CEO has already had written agreements with
service agencies or service agency heads in a range of forms and
for a variety of functions, the reforms in the Bill will apply to
them from the date of commencement.
New section 60 in new Part 9 is a transitional provision that
provides that, on and from the commencement of Part 6A, any
database established and maintained by the Service Victoria CEO
on behalf of a service agency or the Minister responsible for
administering the Principal Act, is taken--
• in the case of a database established and maintained on
behalf of a service agency, to be established and
maintained under section 47A; and
• in the case of a database established and maintained on
behalf of the Minister responsible for administering the
Principal Act, to be established and maintained under
section 47B.
This provision ensures that, where the Service Victoria CEO
has already established a database for a service agency or the
Minister responsible for administering the Principal Act, prior to
the commencement of this Part, those databases are taken to have
been established and maintained in accordance with the Act.
Clause 34 provides for the automatic repeal of the amending Act on 1 July
2023, which is 12 months after the default commencement date.
The repeal of the Bill does not affect in any way the continuing
operation of the amendments made by the Bill (see section 15(1)
of the Interpretation of Legislation Act 1984).
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