EXPLANATORY STATEMENT

Family Assistance (Public Interest Certificate Guidelines) (FaHCSIA) Determination 2008

Summary

The Family Assistance (Public Interest Certificate Guidelines) (FaHCSIA) 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, Housing, 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.

Changes to the 2006 Guidelines

The Guidelines revoke the Family Assistance (Public Interest Certificate Guidelines) Determination 2006.  The new Guidelines largely replicate the 2006 Guidelines, subject to the insertion of new section 16.

New section 16 allows for the disclosure of information for the purposes of the establishment and operation of the Queensland Family Responsibilities Commission, which is established under the Family Responsibilities Commission Act 2008 (Qld).

Part 3 has been renumbered appropriately.

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 Families, Housing, 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, 15 or 16 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)(e) 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, i.e. 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.

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 FaHCSIA, 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).

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 Family Assistance Office.

Consultation

The Department of Education, Employment and Workplace Relations and the Office of the Federal Privacy Commissioner were consulted in relation to new section 16 of these Guidelines.

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.