EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 138

 

Issued by the authority of the Minister for Defence Science and Personnel

 

Defence Force (Home Loans Assistance) Act 1990

 

Defence Force (Home Loans Assistance) Amendment Regulations 2008 (No. 1)

 

The Defence Force (Home Loans Assistance) Act 1990 (the Act) provides a home ownership assistance scheme (the Scheme) available to eligible persons, including members of the Australian Defence Force (ADF) who served in the ADF before 1 July 2008.

 

Section 40 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

 

The Regulations establish a set of purposes for which personal information can be used and disclosed between different entities involved in the administration of the Scheme. This is needed to ensure that all of these activities are taken to be required or authorised by law and so do not breach the Privacy Act 1988.

 

Section 36A of the Act was inserted by the Defence Home Ownership Assistance Scheme (Consequential Amendments) Act 2008, which made consequential amendments to the Act and to the Defence Service Homes Act 1918. The amendments deal with consequential matters in connection with the Defence Home Ownership Assistance Scheme Act 2008 (the DHOAS), which is the new home ownership assistance scheme established for ADF members serving on or after 1 July 2008.

 

Section 36A of the Act provides that a person covered by subsection 36A(3) may, for a purpose prescribed by the regulations, use or disclose personal information to another person covered by subsection 36A(3). Subsection 36A(3) expressly identifies the Secretary of Defence, the Secretary’s delegates under the Act, the Secretary’s delegates under the DFHLA Act and Defence Service Homes Act 1918 and the loan providers, bank or credit provider under the three Acts referred to above. The Regulations provide for the use and disclosure of personal information by the people mentioned in subsection 36A(3) only where it is relevant to the administration of the scheme.

 

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on 1 July 2008, which is the day on which both the DHOAS and the Defence Home Ownership Assistance Scheme (Consequential Amendments) Act 2008 commence.

 

Consultation was considered inappropriate and unnecessary pursuant to section 18 of the Legislative Instruments Act 2003 because the Regulations relate to the service of members of the Australian Defence Force. However, the Department of Prime Minister and Cabinet was consulted in relation to the regulations relating to disclosure and use of personal information, and the Australian Government Solicitor has been engaged to report on the privacy impact of the Act and Regulations.

ATTACHMENT

 

Details of the Defence Force (Home Loans Assistance) Amendment Regulations 2008 (No. 1)

 

Part 1 Preliminary

 

Regulation 1 – Name of Regulations

 

This regulation provides the title of the Regulations, as the Defence Force (Home Loans Assistance) Amendment Regulations 2008 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 July 2008.

 

Regulation 3 – Definitions

 

This regulation provides that Schedule 1 amends the Defence Force (Home Loans Assistance) Regulations 1991.

 

Schedule 1

 

Schedule 1 inserts a new regulation 6 at the end of the Defence Force (Home Loans Assistance) Regulations 1991.

 

Regulation 6 sets out the purposes for which personal information about the persons in circumstances specified under new subsection 36A(1) of the Act may be disclosed or used, by those persons acting on the Commonwealth’s behalf in the administration and operation of the schemes, and as loan providers under the schemes, specified under subsection 36A(3) of the Act.

 

The Privacy Act 1988 protects personal information from unauthorised use and disclosure. If a use or disclosure of personal information under the scheme is outside of the purposes prescribed by these Regulations, it may not fall within the scope of the exceptions to Information Privacy Principles in the Privacy Act 1988, as it may not be prescribed or authorised under a law.

 

The purposes prescribed for use and disclosure of personal information relate directly to the administration of benefits under the Act and the DHOAS. For example, they will authorise:

¨      the administrator of the new DHOAS to inform the administrator and loan provider under the Act when a person chooses to extinguish their rights to subsidy under section 20A of the Act by taking a DHOAS subsidy; and

¨      confirmation of a person’s unused subsidy period under the Act when the person applies for a DHOAS subsidy. This is necessary to assess the service credit that the person can get a benefit for under the section 46 of the DHOAS. Permitting the administrator under the Act and the DHOAS administrator to disclose personal information of this sort will mean that persons seeking subsidy under the new DHOAS can be given their full entitlement.

 

As applicants under the Act and the DHOAS will be advised of the range of use and disclosure to which their information may be put, and their consent sought as part of the application process, the persons whose information is routinely disclosed or used will be informed of the disclosures and uses.

 

 

Authority: Section 40 of the Defence Force (Home Loans Assistance) Act 1990