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Family Assistance (Public Interest Certificate Guidelines) Determination 2006

Family Assistance (Public Interest Certificate Guidelines) Determination 2006

Administered by Department of Social Services

Legislation au F2006L03467 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Summary

The Family Assistance (Public Interest Certificate Guidelines) Determination 2006 (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 guidelines for the exercise of the power of the Secretary of the Department of Families, Community Services and Indigenous Affairs, or the Secretary’s delegate, to disclose information if it is in the public interest to do so.

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

The disclosure 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 disclose that information to further parties, unless otherwise authorised under law.

Part 1—Preliminary

Part 1 sets out 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 Families, Community Services and Indigenous Affairs is to have regard (section 6).

Section 6 provides for matters in which the Secretary must have regard, 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 themselves.

Part 2—Guidelines—public interest certificate (general)

Part 2 sets out how the release of protected information can generally occur under subparagraph 168(1)(a)(i) of the Act for the purposes of the family assistance law.

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

the information cannot reasonably be obtained from another source;
the disclosure is to a person who has sufficient interest in the information; and
that disclosure is for the purpose of section 8, 9, 10, 11, 12, 14 or 15 or subsection 13(1) or (2).

Subsection 7(2) specifies that a person will have a sufficient interest in the relevant information if the person either has a genuine and legitimate interest in the information or the person is a Minister.

Section 8 permits disclosure of protected information to prevent, or lessen, a threat to the life, health or welfare of a person. This reflects the terms of Information Privacy Principle (IPP) 11(1)(c) in section 14 of the Privacy Act 1988.

Subsection 9(1) permits disclosure of protected information if the disclosure is necessary:

for the enforcement of a criminal law in relation to an indictable offence punishable by imprisonment of 2 years or more, or

for the enforcement of a law imposing a pecuniary penalty equivalent to at least 40 penalty units, or
to prevent an act that may have a significant adverse effect on the public revenue.

In general terms, this reflects the terms of IPP 11(1)(d) in section 14 of the Privacy Act 1988. Alternatively, the disclosure must relate to an offence or a threatened offence against a Commonwealth employee or Commonwealth property, or in departmental or Centrelink premises.

The terms “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 relevant department where either the integrity of the program is at risk if the mistake of fact is not corrected or the mistake of fact relates to a matter that has been, or will be, published.

Section 11 allows the disclosure of information if the disclosure is necessary:

to enable a Minister to consider complaints or issues by, or on behalf of a person, and respond to that person accordingly;
to brief a Minister for a meeting or forum that he or she is to attend;
to brief a Minister in relation to issues raised, or proposed to be raised by or on behalf of a person so that the Minister can respond by correcting a mistake of fact, a misleading perception or impression, a misleading statement or an incorrectly held opinion;
to brief a Minister about a Family Assistance Office error or delay; or
to brief a Minister about an anomalous or unusual operation of the family assistance law.

Section 12 allows disclosure of protected information which is necessary 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 person (including a missing person). However, disclosure will only be possible if there is no reasonable ground to believe that the missing person would not want the information disclosed.

Subsection 13(1) allows disclosure of protected information which is necessary 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. However, disclosure will only be possible if there is no reasonable ground to believe that the deceased person would not have wanted the information disclosed. Subsection 13(2) provides that the relevant information may also be disclosed if the information is to establish the death of the person or the place where the death of the person is registered.

Section 14 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 15 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 payment under the family assistance law.

Section 16 provides that this Part applies in regard to a homeless young person and also provides relevant definitions for the purposes of this Part.

Subsection 17(1) provides that for the purposes of Part 3, a public interest certificate may be given by the Secretary if:

the information cannot be obtained from another source;
the Secretary is satisfied that no harm will result to the homeless young person if information is disclosed; and
the Secretary is satisfied that the disclosure is for the purpose of section 18, 19, 20 or 21.

Subsection 17(2) provides that for the purposes of Part 3, a public interest certificate may be given by the Secretary if:

the information cannot be obtained from another source;
the disclosure is to a welfare authority of a State or Territory;
the homeless young person, to whom the information relates, is either in the care of a welfare authority of a State or Territory or is under 15 years of age; and
the Secretary is satisfied that no harm will result to the homeless young person if information is disclosed.

Section 18 permits disclosure of protected information to an appropriate authority if the information is about a family member of a homeless young person and the Secretary is satisfied that 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 or family assistance payment is sanctioned by section 19.

In the case of a reconciliation, or possible reconciliation, between the homeless young person and his or her parent or parents, disclosure of information to facilitate such a reconciliation may be made under section 20.

Section 21 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 (but only where the parent or parents have sought such an assurance), that the homeless young person has been in contact with the department or the Family Assistance Office.

Consultation

As this determination largely mirrors the Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2006, no further consultation was undertaken, other than the consultation taken in relation to that Determination.

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.

Changes from previous Instrument

Aside from some minor technical and consequential amendments, the only major difference between this Instrument and the Family Assistance (Public Interest Certificate Guidelines) Determination 2005 is the addition of section 11, which deals with the release of information to, and disclosure by, the Minister for various purposes.

Overview

The Family Assistance (Public Interest Certificate Guidelines) Determination 2006 was enacted to specify guidelines under which the Secretary of the Department of Families, Community Services and Indigenous Affairs, or the Secretary’s delegate, can disclose protected information if it is in the public interest to do so, as outlined in the A New Tax System (Family Assistance) (Administration) Act 1999. The Guidelines serve to clarify the circumstances under which information may be disclosed, ensuring that such disclosures are made responsibly and in accordance with the law. This determination is a legislative instrument made under the authority of the relevant provisions of the Act and is subject to disallowance by Parliament. The primary policy objective of the Guidelines is to facilitate the disclosure of information in situations where it is necessary to protect individuals or uphold public interest, while also ensuring that the disclosure of such information is appropriately controlled and limited. The Guidelines emphasise the importance of releasing protected information where individuals are not in a position to seek assistance themselves, such as when they are subject to abuse or unable to communicate their circumstances due to age, disability, or other reasons. The Guidelines establish specific criteria for the disclosure of information, including the necessity of the disclosure, the sufficiency of the interest of the person to whom the information is disclosed, and the purpose of the disclosure. The Guidelines also address the release of information in relation to homeless young people, ensuring that disclosures are made in a manner that safeguards their interests and facilitates their access to necessary services.

Scope and Application

The Family Assistance (Public Interest Certificate Guidelines) Determination 2006 provides guidelines for the disclosure of protected information by the Secretary of the Department of Families, Community Services and Indigenous Affairs, or their delegate, if such disclosure is in the public interest. This Determination applies to the disclosure of information related to family assistance laws under the A New Tax System (Family Assistance) (Administration) Act 1999. The Guidelines are applicable to individuals or entities involved in the administration and enforcement of family assistance laws, including government departments, welfare authorities, and possibly private entities where relevant information is held. The jurisdictional reach of these Guidelines is national, as they are made under Commonwealth legislation. The Guidelines do not extend or restrict application through subordinate instruments. The disclosure of information is subject to specific conditions, such as the information not being reasonably obtainable from another source, and the disclosure being necessary for specified purposes such as preventing harm, correcting administrative errors, or facilitating policy development. Exclusions include instances where the disclosure would contravene other laws or the privacy rights of individuals. The Guidelines emphasise the importance of considering the potential for abuse or harm to vulnerable individuals when deciding to disclose protected information.

Key Provisions

The Family Assistance (Public Interest Certificate Guidelines) Determination 2006, under paragraph 169(1)(a)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999, establishes guidelines for the disclosure of protected information by the Secretary of the Department of Families, Community Services and Indigenous Affairs or their delegate when it is in the public interest to do so. The Guidelines are divided into three parts, addressing general circumstances for the release of protected information, specific situations involving homeless young people, and the general conditions for issuing a public interest certificate. Section 6 highlights the importance of considering situations where individuals might be subject to abuse and may be unable to seek assistance themselves, ensuring the release of information in such cases. The obligations under the Guidelines require the Secretary to consider various factors before issuing a public interest certificate, including the necessity of the information for specific purposes such as preventing threats to life or health, enforcing criminal laws, correcting administrative errors, or facilitating policy development. Section 7(1) mandates that the information cannot reasonably be obtained from another source, must be disclosed to a person with a sufficient interest, and must serve specific purposes outlined in sections 8 to 15. Furthermore, section 17(1) and (2) provide additional conditions for disclosing information about homeless young people, ensuring that no harm will result from the disclosure. The Guidelines impose various requirements on the parties involved, including the necessity to assess whether the information can be obtained elsewhere and whether the intended recipient has a legitimate interest in the information. The Secretary must also ensure that disclosure is necessary for the purposes mentioned in sections 8 to 15 and must consider the potential harm to the individual in cases involving homeless young people, as outlined in section 17. For breaches of the Guidelines, the consequences can be both civil and criminal, depending on the nature and severity of the breach. While the specific penalties are not detailed within the Guidelines themselves, breaches of similar legislation typically result in fines or imprisonment under relevant sections of the Privacy Act 1988 or other applicable laws. The unauthorized disclosure of information could lead to significant penalties, reflecting the sensitive nature of the information governed by these Guidelines.

Area of Law: Privacy Law
Instrument: Regulation
Concepts: Definitions & Interpretation; Reporting & Disclosure Obligations; Enforcement Powers

Interactions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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