John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Following the receipt of satisfactory responses on behalf of the Senate Standing Committee on Regulations and Ordinances, I now withdraw business of the Senate notices of motion Nos 1 and 8 standing in my name for eight sitting days after today for the disallowance of A New Tax System (Commonwealth-State Financial Arrangements) Amendment Regulations 2006 (No. 1) and Select Legislative Instrument 2006 No. 258. I seek leave to incorporate in Hansard the committee’s response concerning these instruments.

Leave granted.

The document read as follows—

A New Tax System (Commonwealth-State Financial Arrangements) Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 258

9 November 2006

The Hon Peter Costello MP Treasurer

Suite MG.47

Parliament House

CANBERRA ACT 2600

Dear Treasurer

I refer to the A New Tax System (Commonwealth-State Financial Arrangements) Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 258.

The Committee notes that section 17 of the Legislative Instruments Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken particularly where a proposed instrument is likely to have an effect on business. Section 18 of the Act provides that in some circumstances consultation may be unnecessary or inappropriate. The definition of ‘explanatory statement’ in section 4 of the Act requires an explanatory statement to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken. The Explanatory Statement that accompanies these Regulations makes no reference to consultation. The Committee therefore seeks your advice on whether consultation was undertaken and, if so, the nature of that consultation.

The Committee also seeks an assurance that future explanatory statements will provide information on consultation as required by the Legislative Instruments Act.

The Committee would appreciate your advice on the above matter as soon as possible, but before 24 November 2006, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson Chairman

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29 November 2006

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances Room SG49

Parliament House CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter of 9 November 2006 concerning the A New Tax System (Commonwealth-State Financial Arrangements) Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 258.

Regarding your enquiry as to whether consultation was undertaken for these regulations, my decision was taken following discussions with State and Territory Treasurers to extend the transitional years for Budget Balancing Assistance at the Ministerial Council for Commonwealth-State Financial Relations meeting of 31 March 2006. The States and Territories are the only parties affected by my decision.

I also obtained a letter from the Office of Regulation Review which granted an exemption from providing a Regulation Impact Statement because it was unlikely that the proposed regulations would result in a direct, or a substantial indirect, effect on business and were not likely to restrict competition. A copy of the letter is enclosed for your records.

Guidelines for Treasury staff on preparing regulations and supporting documentation are currently being developed. The guidelines will advise staff to include information on consultation in explanatory statements as required by the Legislative Instruments Act 2003.

I trust this information will be of assistance to you. Yours sincerely

Peter Costello Treasurer

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Social Security (Public Interest Certificate Guidelines (DEWR) Determination 2006

9 November 2006

The Hon Kevin Andrews MP

Minister for Employment and Workplace Relations Suite MG.48

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Social Security (Public Interest Certificate Guidelines) (DEWR) Determination 2006 made under subparagraph 209(1)(a)(i) and paragraph 209(1)(b) of the Social Security (Administration) Act 1999.

The Committee notes that this Determination specifies guidelines for the exercise by the Secretary of the Department of Employment and Workplace Relations of the power to issue certificates that permit the disclosure of protected information about individuals. The Explanatory Statement notes that, with one exception, the Determination is similar to a previous Determination that is repealed by this present Determination. The exception is the inclusion of a new section 11 which permits the disclosure of information in the context of a Ministerial briefing. The inclusion of this new section raises two questions.

First, it is not clear from the wording of the section whether the disclosure of information is restricted to the briefing that is given to the Minister, or whether the section also authorises the subsequent disclosure of that information by the Minister as a consequence of the briefing. Secondly, given the wide ambit of circumstances described in section 11, it is not clear why there was no consultation undertaken with the Privacy Commissioner concerning this Determination.

The Committee would appreciate your advice on the above matters as soon as possible, but before 24 November 2006, to enable it to finalise its consideration of this Determination. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson Chairman

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29 November 2006

Senator John Watson

Chairman Standing Committee on Regulations and Ordinances Parliament House

CANBERRA ACT 2600

Dear Senator

Thank you for your letter of 9 November 2006 concerning the Social Security (Public Interest Certificate Guidelines) (DEWR) Determination 2006 (the Guidelines).

I trust the following information addresses the Committee's concerns it has raised in respect of the Guidelines.

Background

Personal information about individuals is obtained by my Department in relation to pensions, benefits and payments under the Social Security Act 1991 (the Social Security Act) and the Social Security (Administration) Act 1999 (the Administration Act). Information of this sort falls within the definition of protected information in section 23 of the Social Security Act.

Prior to disclosure of protected information under subparagraph 208(1)(a) of the Administration Act, the Secretary must certify it is in the public interest for the information to be disclosed. Once the information has been disclosed pursuant to certification, the information may only be subsequently disclosed if it is in accordance with the social security law.

The Guidelines themselves do not authorise disclosure but provide parameters for when the Secretary can certify that disclosure is in the public interest.

Certification may be given if the person to whom the information will be disclosed has sufficient interest in the information and it is for one of the purposes contained in the Guidelines. A person has sufficient interest if in relation to the disclosure he or she has a genuine and legitimate interest in the information or the person is a Minister.

Minister is defined in the Guidelines and means the Prime Minister and a Minister administering the policy or service delivery of the social security law.

The underlying objective of the amendments to the Guidelines is to put beyond doubt the ability of the Secretary, where appropriate, to disclose protected information to Ministers with responsibility for social security matters to ensure they are properly briefed on such matters. I consider proper briefing of Ministers to be critical to discharging their responsibilities in the public interest.

Question 1

In response to the Committee’s first question, if a certificate has authorised the disclosure of protected information to brief the Minister, the information could only be subsequently disclosed in accordance with the social security law.

Question 2

The information that is disclosed under subparagraph 208(I)(a) is ‘protected information’ as defined in the Social Security Act. The Office of the Privacy Commissioner, established under the Privacy Act 1988 (Ctlz) (the Privacy Act), has responsibility for the protection of individuals' personal information in accordance with the Privacy Act. The Privacy Commissioner, however, does not have responsibility for the confidentiality provisions in the social security law and accordingly the Privacy Commissioner’s views were not sought in amending the Guidelines.

Thank you for bringing these matters to my attention.

Yours sincerely

Kevin Andrews

Minister for Employment and Workplace Relations