EXPLANATORY STATEMENT

Family Assistance (Public Interest Certificate Guidelines) Determination 2005

Summary

The Family Assistance (Public Interest Certificate Guidelines) Determination 2005 (the Guidelines) are made under paragraph 169(1)(a)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act).

The purpose of the Guidelines is to specify circumstances in which the Secretary of the Department of Family and Community Services, or the Secretary’s delegate, may release information, if it is in the public interest to do so.

Subsection 169(2) of the Act provides that the Guidelines constitute a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.  This means that the Principles are a legislative instrument in accordance with paragraph 6(d) of the Legislative Instruments Act 2003.

The release of protected information to a person, under paragraph 168(1)(a)(i) of the Act in accordance with the Guidelines, does not give that person the authority to release that information to further parties, unless otherwise authorised under law.

Part 1—Preliminary

Part 1 sets out the preliminary information about the Determination, namely, the name of the determination (section 1), commencement (section 2), revocation of the former instrument (section 3), purpose (section 4), definitions (section 5) and matters to which the Secretary of the Department of Family and Community Services is to have regard (section 6).

Section 6 of Part 1 provides that in the giving of a public interest certificate, the Secretary must have regard to any situation in which a person to whom the information relates is, or may be, subject to physical, psychological or emotional abuse.  In such a situation, the Secretary must also have regard to whether the person may be unable to give notice of his or her circumstances because of age, disability or social, cultural, family or other reasons.  Section 6 is intended to emphasise the importance of the release of protected information where individuals are not in a position to seek assistance or intervention themselves.

Part 2—Guidelines—public interest certificate (general)

Part 2 sets out how the release of protected information can occur under subparagraph 168(1)(a)(i) of the Act in general terms for the purposes of the family assistance law.  This part will also apply in relation to a homeless young person, the subject of Part 3 of the Guidelines.

Subsection 7(1) provides that for the purposes of Part 2, a public interest certificate may be given by the Secretary if:

(i) the information cannot be obtained from another source;

(ii) the disclosure is to a person who has sufficient interest in the information; and

(iii) that disclosure is for the purpose of section 8, 9, 10, 11, 13 or 14 or subsections 11(1) or (2).

Subsection 7(2) specifies that sufficient interest is a genuine and legitimate interest in the information.

Section 8 permits disclosure of protected information to prevent, or lessen, a threat to the life, health or welfare of a person.  This reflects Information Privacy Principle (IPP) 11(1)(c).

Subsection 9(1) permits disclosure of protected information for the enforcement of laws, whether that be the criminal law in relation to an indictable offence punishable by imprisonment of 2 years or more, or a law imposing a pecuniary penalty equivalent of at least 40 penalty units, or to prevent an act that may have a significant adverse effect on the public revenue.  This reflects IPP 11(1)(e).  The disclosure must relate to an offence or a threatened offence against a Commonwealth employee, Commonwealth property, Department or Family Assistance Offices.

Criminal law and penalty units are defined at subsection 9(2).

Section 10 permits disclosure of protected information to correct a mistake of fact in relation to the administration of a program of the Department of Family and Community Services where either the integrity of the program is at risk if the mistake of fact is not corrected or the mistake of fact has been, or will be, published.

Disclosure of protected information to assist a court, coronial enquiry, Royal Commission, department or any other authority of a State or Territory in relation to the whereabouts of a missing person or to locate a missing person is provided by section 11.  Disclosure will not occur if there are reasonable grounds to believe that the missing person would not want the information disclosed.

Disclosure of protected information to assist a court, coronial enquiry, Royal Commission, department or any other authority of a State or Territory in relation to a deceased person, to locate a relative or beneficiary of the deceased person, or in relation to the administration of the estate of the deceased person is provided by subsection 12(1).  Disclosure will not occur if there are reasonable grounds to believe that the deceased person would not have wanted the information disclosed.  Subsection 12(2) provides that the only relevant information that can be disclosed is to establish the death of the person or that place where the death of the person is registered.

Section 13 provides that protected information can be released where this is done for research purposes, including evaluation, monitoring and reporting, or statistical analysis in relation to any matter that is relevant to any department administering any part of the social security or family assistance law.

Section 14 provides that protected information can be released where this is done for policy development generally, or for facilitating the progress or resolution of a matter, ie a matter not already covered by paragraph (a), that is relevant to any department administering any part of the social security or family assistance law.

Part 3—Guidelines—public interest certificate (homeless young person)

Part 3 sets out how the release of protected information can occur under subparagraph 168(1)(a)(i) of the Act in relation to homeless young people for the purposes of a social security payment or a payment under the family assistance law.  This Part can apply in respect of a homeless young person in addition to Part 2.

Subsection 15(1) provides that for the purposes of Part 3, a public interest certificate may be given by the Secretary if:

(i) the information cannot be obtained from another source;

(ii) no harm will result to the homeless young person if information is disclosed; and

(iii) that disclosure is for the purpose of section 16, 17, 18 or 19.

Subsection 15(2) provides that for the purposes of Part 3, a public interest certificate may be given by the Secretary if:

(i) the information cannot be obtained from another source;

(ii) the disclosure is to a welfare authority of a State or Territory;

(iii) the homeless young person is either in the care of a welfare authority of a State or Territory or is under 15 years of age; and

(iv) no harm will result to the homeless young person if information is disclosed.

Section 16 permits disclosure of protected information to an appropriate authority if the information is about a family member of a homeless young person and the homeless young person or a family member of the homeless young person has been subjected to abuse or violence.

Disclosure of information to verify a circumstance by which a homeless young person under the age of 15 years may qualify for a social security payment is sanctioned by section 17.

In the cases of a reconciliation between the homeless young person and his or her parent or parents, disclosure of information to facilitate the reconciliation may be made under section 18.

Section 19 allows for disclosure of information about a homeless young person to a parent, or parents of the homeless young person but only to assure the parent, or parents, that the homeless young person has been in contact with the Department or the Family Assistance Office.

Consultation

Due to the minor nature of the amendments to the Guidelines, no consultation was undertaken.

Regulation Impact Statement

There was no requirement to prepare a Regulation Impact Statement in regard to the Guidelines, as they are of a minor or machinery nature and do not substantially alter existing arrangements.