EXPLANATORY STATEMENT

Family Assistance (Public Interest Certificate Guidelines) (DSS) Determination 2014

Summary

The Family Assistance (Public Interest Certificate Guidelines) (DSS) Determination 2014 (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 assist the Secretary (or the delegate) of the Department of Social Services in the exercise of power under paragraph 168(1)(a) to disclose information and in the determination of what is considered to be ‘the public interest’.

The disclosure of protected information to a person, under paragraph 168(1)(a) of the Act in accordance with the Guidelines, does not give that person the authority to disclose that information to further parties, unless this disclosure is for the purpose for which the information was disclosed to the person, as permitted by paragraph 162(2)(e) of the Act, or the disclosure is otherwise authorised under law.

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.

Changes to the 2010 Guidelines

The Guidelines revoke the Family Assistance (Public Interest Certificate Guidelines) (FaHCSIA) Determination 2010.  The new Guidelines largely replicate the 2010 Guidelines, subject to changes below to align the Guidelines with the Social Security (Public Interest Certificate Guidelines) (FaHCSIA) 2013 and the A New Tax System (Family Assistance) (Public Interest Certificate Guidelines) (DEEWR) Determination 2010.

New section 16D allows for the disclosure of the information held by the Australian Government where these details would be used for the purpose of identifying children who should be enrolled and attending school, under State and Territory laws, are enrolled and attending in accordance with those laws.

New section 16E allows for the disclosure of information held by Australian Government where that information would assist to plan for, meet or monitor infrastructure and resource needs in one or more schools.

The new Guidelines also include some minor amendments to ensure cross references to other Commonwealth Acts reflect recent changes to those Acts.

A detailed description of the full Guidelines follows.

Part 1—Preliminary

Part 1 sets out preliminary information about the Guidelines, 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 Social Services is to have regard (section 6).

A minor amendment was made to the definitions in section 5 to remove the reference to Centrelink and replace it with a reference to the Department of Human Services.  This amendment reflects the changes made by the Human Services Legislation Amendment Act 2011.

Section 6 provides for matters to 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, 15, 16, 16A, 16B, 16C, 16D, 16E 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 one of the permitted general situations defined in section 16A 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. 

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).  The definition of “penalty units” has been updated to reflect the amendments made to the Crimes Act 1914 by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012.  In particular the amendment reflects that “penalty unit” was increased from $110 to $170.

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 permits 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 the Minister 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, or a misleading statement;
• to brief a Minister about a Centrelink error or delay; or
• to brief a minister about an anomalous or unusual operation of the family assistance law.

Section 12 permits 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 reported missing person or to locate 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.

A reported missing person is a person who has a missing person’s report filed with the police.

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;
• necessary to locate a relative or beneficiary of the deceased person; or
• necessary to help an individual or authority responsible for the administration of the estate of the deceased person 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 any matters that are relevant to a department administering any part of the social security or family assistance law where the matter is within the portfolio responsibility of that department, i.e. a matter not already covered by paragraph (1)(a), that is relevant to any department administering any part of the social security or family assistance law.

The Department and other departments that administer the social security law or family assistance law also administer programs and schemes that deliver additional support and assistance to people in receipt of social security and family assistance payments or entitlements.  This additional support does not necessarily fall within the social security law or the family assistance law.  Section 15 enables the disclosure of protected information in the public interest where it is necessary to facilitate or progress a departmental program or scheme that is designed to deliver services to support and assist a group of community members wholly or partly comprised of social security or family assistance recipients, whether or not that program or scheme falls within the social security law or family assistance law.

This section enables a delegate to disclose information where the disclosure is not already authorised by section 162 of the Act, or by another section in these Guidelines.  Section 15 is also subject to section 7 of this Determination which requires that any disclosure to a person can only occur where that person has a genuine and legitimate interest and the information cannot reasonably be obtained other than from Centrelink or the Department. A certificate under section 168 of the Act would also specify who specifically disclosure can be made to in any given circumstance.  Section 15 mirrors an equivalent provision of the Social Security (Public Interest Certificate) (FaHCSIA) Guidelines 2013.

Subsection 16(1) provides for relevant protected information to be disclosed where it is necessary for the purpose of the establishment of the Queensland Family Responsibilities Commission as well as in assisting in the performance of its functions and exercise of its powers.

This section is aimed at supporting the Family Responsibilities Commission which has been established by the Family Responsibilities Commission Act 2008 (Qld) (FRC Act).  This newly created statutory body underpins the Cape York Welfare Reform Trials.

Under Part 4 of the FRC Act, a notice about a person, called an ‘agency notice’, will be given to the FRC in a wide range of circumstances.  These circumstances include: where a child who is a dependant of the person is not enrolled in school, is not meeting school attendance requirements or is the subject of a child protection notification; where the person is convicted of an offence in the Magistrates Court; and where the person is in breach of certain tenancy obligations.  However, the FRC can only hold a conference about a person for whom it has received an agency notice if the person is a ‘community member’ (see sections 7, 8 and 49 and the definition of ‘relevant person’ in the Schedule to the FRC Act). 

Accordingly, for each agency notice that the FRC receives, the FRC must determine, before holding a conference: who is the ‘relevant person’ for the agency notice; whether the relevant person is a ‘welfare recipient’ within the meaning of section 8 of the FRC Act; and whether the person is a ‘community member’ within the meaning of section 7 of the FRC Act.

The provision of this information by DSS, through Centrelink, will facilitate the Cape York Welfare Reform Trials: it will support the FRC’s decision-making, enabling the FRC to correctly identify persons who are within the jurisdiction of the FRC and ensuring that conferences are held, and decisions are made, on a valid basis.

Subsection 16(1) is also subject to section 7 of this Determination which requires that any disclosure to a person can only occur where that person has genuine and legitimate interest and the information cannot be obtained other than from Centrelink or the Department. A certificate issued under section 168 of the Act would also specify who disclosure can be made to in a given circumstance.

Subsection 16(2) provides that in section 16, the Family Responsibilities Commission means the Commission established by section 9 of the Family Responsibilities Commission Act 2008 (Qld).

Section 16A allows for the disclosure of protected information where the information will be used by a State, Territory or the Commonwealth government for the purpose of contacting the customer in respect of compensation or other forms of recompense in various reparation processes, including the ‘stolen wages’ reparations in Queensland.  This helps ensure that this assistance, formerly undertaken under the In Touch Program, can still be provided.

Section 16B allows for the disclosure of information about a parent or relative of a child to State or Territory Child Protection agencies where the agency is seeking to contact the parent or relative when section 8 of these guidelines are not available because there is no identifiable threat to the life, health or welfare of the child.  For example, section 16B may apply when a child protection agency is seeking to contact a parent to assist in a court case.  This section helps ensure that this assistance, formerly undertaken under the In Touch Program, can still be provided.

Section 16C allows for the disclosure of information about a public housing or other State or Territory managed housing resident or tenant to a department or any other authority of a State or Territory where it is necessary to facilitate:

• rent calculation and rent deduction in relation to public housing or State or Territory managed housing; or
• the administration of an income confirmation service in relation to public housing or State or Territory managed Housing to avoid mistakes, underpayments and overpayments of rent, pensions, benefits and allowances.

An example of the application of section 16C and the main impetus for introducing the section is the Automatic Income Confirmation Service (AICS).  There is an existing Income Confirmation service (ICS), which is voluntary, under which all members of public housing households, who are also Centrelink clients, can authorise their relevant State or Territory housing authority (SHA) to automatically confirm details of their income directly from Centrelink.  Those who do not participate in ICS must regularly verify their income to the SHA to allow for a reassessment of rent by SHA staff.  The manual process of income verification consumes considerable resources for both SHAs and Centrelink.  It also requires Centrelink clients to regularly respond to correspondence seeking income confirmation.  If the response is not timely, action may be taken to adjust the rent and there are regular occurrences of incorrect rent payments.  These outcomes increase the risk of eviction and consequently homelessness.

Information from SHAs indicate that there are at least 700 public housing evictions a year due to non-payment of rent with many more tenants each year owing rent, many without notice.  On 29 November 2008 the Council of Australian Governments agreed to the National Affordable Housing Agreement (NAHA) which included the introduction of improved information exchange between the Commonwealth and the States and Territories as well as automatic rent deductions for public housing tenants to improve the operational efficiency of public housing and to reduce evictions from public housing as a priority area of reform. 

Section 16C will authorise the transfer of income details for people in public housing from Centrelink to SHAs to allow for the accurate calculation of rents.  In the context of AICS, section 16C will authorise the transfer of income details held by Centrelink to SHAs every six months and from time to time in response to SHA requests, which will help prevent evictions from incorrectly calculated or unpaid rent.  The disclosure of information will provide administrative efficiency for both government agencies and those in public housing who need to have their rents determined according to their household income. Additionally, this disclosure of information will reduce the risk of privacy breaches, as automation will reduce SHA staff access to the income information.

Section 16D permits disclosure of relevant information where it is necessary to ensure a child who should be enrolled in, or attending, school, is enrolled or attending.

State and Territory education departments and schools may not necessarily have certain information on their own records. For example, they may not be aware of children who are not enrolled at school.  Section 16D will facilitate the release of information to ensure children who should be enrolled and attending school, under State and Territory laws, are enrolled and attending in accordance with those laws.

Attendance at school is one of the principal indicators for school achievement and students who are regularly absent from school are those at greatest risk of dropping out of school early, becoming long-term unemployed, dependent on welfare and being involved in the justice system. Section 16D is intended to ensure that relevant information held by the Commonwealth is shared so that action can be taken to facilitate enrolment and improve attendance in accordance with State or Territory laws.

Section 16D mirrors an equivalent provision of the Social Security (Public Interest Certificate) (FaHCSIA) Guidelines 2013 and the A New Tax System (Family Assistance) (Public Interest Certificate Guidelines) (DEEWR) Determination 2010.

Section 16E permits the disclosure of relevant information where it is necessary to plan for, meet or monitor infrastructure and resource needs in one or more schools.

Section 16E mirrors an equivalent provision of the Social Security (Public Interest Certificate) (FaHCSIA) Guidelines 2013 and the A New Tax System (Family Assistance) (Public Interest Certificate Guidelines) (DEEWR) Determination 2010.

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

Subsection 18(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 19, 20, 21 or 22.

Subsection 18(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 19 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 20.

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 21.

Section 22 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 Human Services Department.

Consultation

DSS has advised the Department of Employment and Department of Human Services of these proposed changes to the DSS Guidelines.  The Office of the Privacy Commissioner was consulted in the making of this determination.  No public consultation was considered necessary.

Regulatory Analysis

These Guidelines do not require a Regulatory Impact Statement and/or a Business Cost Calculator Figure. These Guidelines are not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact. It is not expected that any compliance costs will be incurred by business as a result of these Guidelines.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Family Assistance (Public Interest Certificate Guidelines) (DSS) Determination 2014

The Family Assistance (Public interest Certificate Guidelines) (DSS) Determination 2014 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Determination is made under paragraph 169(1)(a)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 (‘the Act’). The purpose of the Determination is to provide guidelines to assist the Secretary (or a delegate) of the Department of Social Services (DSS) in the exercise of their power under paragraph 169(1)(a)(i) of the Act to disclose information in the public interest.

The family assistance system involves the collection, use, storage and disclosure of significant amounts of information, much of which is of a personal nature. Part 5 of the Act provides a legal framework to ensure that a high level of protection is accorded to such information. Personal information handled under the social security system is also protected by the Privacy Act 1988.

Part 6 of the Act contains comprehensive provisions relating to the management of personal information, including provisions relating to the disclosure of such information. Among these provisions, paragraph 168(1)(a) provides that the Secretary (or the delegate) can disclose information acquired by an officer under the family assistance law if they certify that it is necessary in the public interest to do so in a particular case or class of cases. A certificate under this provision must specify the persons to whom, and the purposes for which, the information is provided. Under section 169, the Minister has the power to make guidelines for the exercise of the Secretary’s power in paragraph 168(1)(a).

Prior to the current Determination, the Minister most recently exercised the guideline-making power by making the Family Assistance (Public Interest Certificate Guidelines (FaHCSIA) Determination 2010 (the 2010 Determination). The 2010 Determination provided guidelines relating to the disclosure of information in the public interest in a number of precisely-defined situations, and subject to a number of conditions (including that the information cannot reasonably be obtained from other sources and the person receiving the information has a sufficient interest in it).

The current Determination retains the content of the 2010 Determination (which is revoked), but adds two new situations in which information can be disclosed in the public interest. These two situations are as follows:

• the school enrolment and attendance measure, which inserts new section 16D which permits disclosure of relevant information where it is necessary to ensure a child who should be enrolled in, or attending, school, is enrolled or attending; and
• the school infrastructure measure, which inserts new section 16E to permit the disclosure of relevant information where it is necessary to plan for, meet or monitor infrastructure and resource needs in one or more schools. 

Each of those situations is precisely-defined, and is subject to the condition that information can only be disclosed if it cannot reasonably be obtained from a source other than DSS or the Department of Human Services (DHS), and that the person to whom the information relates has “sufficient interest” in the information (see section 7 of the Determination).  The term “sufficient interest” is satisfied if the person has a genuine and legitimate interest in the information or the person is a Minister (as defined in section 5).

Human rights implications

Interference with privacy

The Determination engages the prohibition on interference with privacy, which impacts on changes to Commonwealth secrecy provisions relating to personal information, such as this Act. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) prohibits unlawful or arbitrary interferences with a person’s privacy. It also provides that persons have a right to the protection of the law against such interference. 

The use of the term “arbitrary” in Article 17 means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in all the circumstances. It is recognised that limitations may be imposed on the general prohibition on interference with privacy, provided that such limitations are reasonable, necessary and proportionate.

The two new measures incorporated in this Determination are reasonable, necessary and proportionate. Each of the measures is reasonable in that each addresses a particular situation where a public benefit will flow from the disclosure of the information. In the case of the school enrolment and attendance measure, the purpose of the disclosure is to assist in identifying children with a view to ensuring they are enrolled in and attending the available primary and secondary education. In the case of the school infrastructure measure, the purpose of the disclosure of relevant information where it is necessary to plan for, meet or monitor infrastructure and resource needs in one or more schools.

Each of the measures is necessary as there are no viable and cost-effective alternatives to the relevant disclosures.

Each of the measures is also proportionate, as they are each precisely defined and suitably qualified to ensure that they carefully target the issues they are addressing. This means that any officer making a public interest certificate on the basis of the new guidelines has a tightly-controlled discretion which is appropriate and proportionate in the circumstances.  

There are a number of safeguards in place in relation to the disclosure of information under the new measures, many of which apply (and have applied over time) in relation to public interest disclosures under other provisions in the Determination.  These include the following:

• As noted above, while the Privacy Act continues to apply in relation to the management of social security information, the social security law imposes a higher level of protection to such information than is imposed under the Privacy Act. For example, criminal sanctions apply for the unauthorised use or disclosure of information under the social security law (for example, section 204 of the Social Security (Administration) Act 1999);

• Public interest certificates made on the basis of the guidelines in the Determination are made by experienced Commonwealth officers (usually in DHS) at appropriate levels, and are subject to administrative arrangements which recognise the significance of such decisions;

• In appropriate circumstances, the disclosure of information under the Determination may be accompanied by additional measures to further protect the information (eg Deeds of confidentiality may be required for recipients of the information); and

• The family assistance law provides that information provided to a person on the basis of a public interest certificate must be used for the purpose for which it was provided. It is not possible for that recipient to disclose the information to other parties unless the disclosure is for the same purpose or the disclosure is otherwise authorised by law.   

Right to education

The Determination also engages the right to education as recognised in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to education requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system.

The new measures in the Determination promote this right. The school enrolment and attendance measure promotes this right by enabling disclosures of information to assist in identifying children who ought to be enrolled in and attending school. The school enrolment and attendance measure promotes this right by ensuring that children can be identified and are involved in the available primary and secondary education.

Concluding remarks

The Determination is compatible with human rights because it promotes the right to education. To the extent that the right to privacy is limited, those limitations are reasonable, necessary and proportionate, and appropriate safeguards are in place.

Conclusion

The Determination is compatible with human rights.