EXPLANATORY STATEMENT

Social Security (Administration) (Public Interest Certificate Guidelines) (DEWR) Determination 2023

Summary

The Social Security (Administration) (Public Interest Certificate Guidelines) (DEWR) Determination 2023 (Guidelines) is made by the Minister for Employment and Workplace Relations under paragraph 209(a) of the Social Security (Administration) Act 1999 (the Act).

The purpose of the Guidelines is to assist the Secretary of the Department of Employment and Workplace Relations (DEWR), or their delegate, in the exercise of their power under paragraph 208(1)(a) of the Act to disclose information acquired in the performance of functions or duties, or exercise of powers, under the social security law where it is necessary in the public interest.

The disclosure of information to a person, under paragraph 208(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 202(2)(e) of the Act, or the disclosure is otherwise authorised under law.

Further, the protected information provisions in the social security law will remain operating together with relevant requirements of the Privacy Act 1988. While a public interest certificate will provide authority under law for the purposes of use and disclosure of protected information, key requirements in the Privacy Act 1988 will still apply to DEWR as an APP entity.

Changes since the 2013 Guidelines

The Guidelines revoke the Social Security (Administration) (Public Interest Certificate Guidelines) (DEEWR) Determination 2013 (2013 Guidelines). The Guidelines largely replicate the 2013 Guidelines, subject to a number of changes discussed below.

The Guidelines add a new section 11. The purpose of this new section is to allow for the disclosure of information where this is necessary to assist Commonwealth, State and Territory law enforcement agencies with:

the making, or proposed or possible making, of a proceeds of crime order; or
supporting or enforcing a proceeds of crime order.

The aim of this section is to support the existing law which allows for the seizure of money and property by law enforcement agencies to disrupt and combat serious and organised crime. This section will allow information to be disclosed to assist law enforcement agencies in their efforts to deprive individuals of the proceeds of unlawful activity.

New section 20 allows for the disclosure of information for the purposes of research and statistical analysis where that research or analysis is relevant to a Relevant Department (defined in section 5), such as DEWR, that is administering any part of the social security law or family assistance law.

New section 21 allows the disclosure of information to investigate suspected breaches of the APS Code of Conduct and make a decision on whether the APS Code of Conduct has been breached.

The Guidelines also make a number of other changes to the 2013 Guidelines which include:

Separating the section in the 2013 Guidelines relating to deceased and missing persons into two sections, with new section 12 dealing with disclosure of information in relation to missing persons and the new section 13 dealing with disclosure of information in relation to deceased persons. The scope of sections 12 and 13 have also been expanded from the scope of the section in the 2013 Guidelines to allow either the disclosure of information about any other relevant person to help locate the missing person or to assist a relevant person or authority in relation to the death of the deceased person. New section 13 would facilitate, for example, disclosing information to help contact a beneficiary to the deceased’s will.

Removing the grounds relating to Mistake of Fact (section 10 of the 2013 Guidelines) and Ministerial Briefing (section 11 of the 2013 Guidelines). These sections have been removed to better safeguard against the misuse of these sections by preventing disclosure for these purposes, noting that existing provisions in the Act may otherwise authorise the disclosure of information, or disclosure may be covered by another section in these Guidelines.

Removing the grounds relating to School Enrolment and Attendance (section 13 of the 2013 Guidelines) and School Infrastructure (section 14 of the 2013 Guidelines). These sections have been removed as they are not relevant to DEWR.

Expanding the scope of section 19 relating to Matters of Relevance to a Relevant Department or agency from the scope of the equivalent provision in the 2013 Guidelines to include when the disclosure is necessary to facilitate the progress or resolution of a matter of relevance to an agency responsible for the delivery of government services. This expansion is necessary so that information can be disclosed and used to assist matters of relevance to the National Indigenous Australians Agency and Services Australia. Previously such information could only be disclosed if it was of relevance to a Department of the State of the Commonwealth.

The Guidelines also make a number of other technical and minor changes. These include:

removing ‘relevant’ from the definition of ‘information’ and aligning the definition to the wording of paragraph 208(1)(a) of the Act;
amending definitions for further clarity (‘Department’, ‘Relevant Department’, ‘Relevant Minister’ and ‘officer’);
including a new definition for DEWR;
renumbering sections due to sections being added or removed as outlined above;
adding the new section 7 for the application of Part 2;
amending paragraphs 8(1)(c)(i) and (ii) to clarify who the information may be disclosed to; and
simplifying the language in section 16 without changing the operation of that section.

Regulatory Impact Analysis

This Determination is not regulatory in nature and will have no regulatory impact on individuals, business, activity or competition (Office of Impact Analysis reference OIA23-04620).

Commencement

The Guidelines will commence on the day after registration on the Federal Register of Legislation.

Consultation

Consultation with the Department of Social Services.

The consultation satisfies section 17 of the Legislation Act 2003.

Description of the provisions in the Guidelines

Part 1 – Preliminary

Part 1 sets out preliminary information about the Guidelines, namely, the name of the Guidelines (section 1), commencement (section 2), revocation of the 2013 Guidelines (section 3), authority (section 4), definitions (section 5) and matters to which the Secretary of DEWR (or delegate) must have regard in giving a public interest certificate (section 6).

Section 6 provides that 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. The Secretary must also have regard to whether the person in such a situation 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 ensure that these matters are considered in giving a public interest certificate, such as where information may be disclosed in relation to situations involving individuals who may not be in a position to seek assistance themselves.

Part 2 – Guidelines – public interest certificate (general)

Part 2 sets out the general circumstances in which a public interest certificate can be issued under paragraph 208(1)(a) of the Act.

Section 7 provides that Part 2 applies to information to which Part 3 does not apply.

Section 8 sets out when the Secretary may give a public interest certificate. A public interest certificate may be given if:

the information cannot reasonably be obtained from another source other than DEWR; and
the disclosure will be to a person who has sufficient interest in the information; and
the Secretary is satisfied that disclosure is for at least one purpose mentioned in a provision in Part 2.

Subsection 8(2) provides that a person has sufficient interest in the information if either the Secretary is satisfied that, in relation to the purpose of the disclosure, the person has a genuine and legitimate interest in the information or the person is a Relevant Minister.

This section makes clear that a public interest certificate is a last resort and can only be issued if there is no other means to obtain information for the identified public interest purposes.

Section 9 permits disclosure of relevant information where necessary to prevent, or lessen, a threat to the life, health or welfare of a person.

Section 10(1)(a) permits disclosure of relevant information if the disclosure is necessary:

for the enforcement of a criminal law that relates to an indictable offence punishable by imprisonment of 2 years or more;
for the enforcement of a law imposing a pecuniary penalty equivalent to 40 penalty units or more; or
to prevent an act that may have a significant adverse effect on the public revenue.

The aim of this paragraph is to assist law enforcement agencies and other regulatory agencies in their enforcement of laws.

Section 10(1)(b) permits disclosure of relevant information where the disclosure relates to an offence, or threatened offence, against an officer or Commonwealth property, or in premises occupied by service organisations.

The aim of this paragraph is to ensure that persons involved, and property used, in providing services to social security recipients, are appropriately protected.

Section 11 permits disclosure of information to a Commonwealth, State or Territory law enforcement agency where this is necessary for:

the making, or proposed or possible making, of a proceeds of crime order; or
supporting or enforcing a proceeds of crime order.

Subsection 11(2) defines ‘proceed of crime order’ for the purposes of section 11.

Section 11 is a new section that was not in the 2013 Guidelines. The aim of this section is to disrupt and combat serious and organised crime. The measure does this by allowing information to be disclosed to assist law enforcement agencies in their efforts to deprive individuals of the proceeds, instruments and benefits derived from unlawful activity.

Where a proceeds of crime order has been made or is being sought against an individual under a Commonwealth, State or Territory law, section 11 will ensure that law enforcement bodies and other relevant entities have access to the information they need to make, support or enforce the order.

Section 12 permits the disclosure in relation to reported missing persons or any other relevant person. A reported missing person is a person who has a missing person’s report filed with the police. Information about a missing person or any other relevant person can be disclosed if the disclosure is necessary to assist a court, coronial inquiry, Royal Commission, a Department of State of the Commonwealth, a 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. However, a public interest certificate will only be able to be issued if there is no reasonable ground to believe that the missing person or other relevant person would not want the information disclosed.

Section 12 has been modified from section 12 in the 2013 Guidelines which had provided for disclosure in relation to missing and deceased persons in a single provision. The Guidelines have separated the provisions for disclosure in relation to missing persons (section 12) and deceased persons (section 13).

Section 12 has also been expanded from the former section 12 in the 2013 Guidelines to permit the disclosure of information related to any other relevant person where that disclosure is necessary to assist a court, coronial inquiry, Royal Commission, a Department of the State of the Commonwealth or a 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. This has been added as information about another person, such as names of people who worked with or resided with the missing person, may assist in investigating the disappearance of, or locating the, missing person.

Section 13 permits the disclosure in relation to deceased persons or any other relevant person. Information about a deceased person and any other relevant person can be disclosed if the disclosure is:

necessary to assist a court, coronial inquiry, Royal Commission, Department of State of the Commonwealth, or a department or any other authority of a State or Territory, in relation to the death of the deceased person; or
necessary to help a person locate a relative or beneficiary of the deceased person in relation to the administration of the estate of the deceased person; or
necessary to assist the person 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.

Subsection 13(c) provides the disclosure can only be made under section 15 if there are no reasonable ground to believe that the deceased person or the other person would not want the information disclosed.

Section 13, unlike the 2013 Guidelines, is not limited to information about the deceased person and permits the disclosure of information about any other relevant person where the disclosure is for one of the specified purposes in section 13. The purpose of this change is to permit the disclosure of information about another individual where it would assist a court, coronial inquiry, Royal Commission, Department of State of the Commonwealth or department or other authority of a State or Territory in relation to the death of the person, or is necessary to assist the administrator or executor of the decease’s estate. This would allow information about another individual to be disclosed to assist a court or other authority responsible for investigating the death of the person where, for example, that information is relevant to the circumstances of the person’s death or their life before their death. This ground would also allow the disclosure of information of another person where that person is a beneficiary of the deceased person’s estate and the administrator or executor needs to contact the beneficiary.

Section 14 permits disclosure of information about a resident, an applicant to become a tenant or a tenant of public housing or State or Territory managed housing, where it is necessary to:

facilitate rent calculation or rent deduction in relation to public housing, or State- or Territory-managed housing; or
facilitate the administration of an income confirmation service in relation to public housing or State- or Territory-managed housing.

Section 14 replicates the former section 15 of the 2013 Guidelines.

Section 15 provides for information to be disclosed where it is necessary to assist in the performance of the functions, or the exercise of the powers, of the Family Responsibilities Commission. Among other things, information can be disclosed under subsection 15(1) to support decision-making by the Family Responsibilities Commission. This would include enabling the FRC to correctly identify persons who are within its jurisdiction.

Subsection 15(2) provides that the Family Responsibilities Commission means the Commission established by section 9 of the Family Responsibilities Commission Act 2008 (Qld).

Section 16 permits the disclosure of information where the information will be used by a State, Territory or the Commonwealth government for the purpose of contacting someone in respect of their possible entitlement to compensation or other forms of recompense in a reparation process.

The aim of this section is to support such reparation processes by allowing disclosure of the contact details for relevant persons.

Section 17 permits the disclosure of information to a child protection agency if the disclosure is necessary for the purpose of contacting a child’s parent or relative in relation to the child. For example, section 17 may apply when a child protection agency is seeking to contact a parent or relative to assist in a court case relating to the child.

Section 17 replicates the former section 18 in the 2013 Guidelines.

Section 18 permits the disclosure of information about a person’s social security concessions where responsibility for the provision of services to them has been transferred from one public utility to another. The purpose of this section is to facilitate improved customer service for Commonwealth concession card holders who receive a concessional rate on their utilities bill. This section only applies where the customer of a public utility has provided consent to enable that public utility to confirm their entitlement to a social security related concession. The term “public utility” is defined in subsection 18(2) to mean a legal entity that provides, or is related to a legal entity that provides, water, sewerage, gas, electricity, or telecommunications services to the public.

Section 18 replicates the former section 18C in the 2013 Guidelines

Section 19 provides that information can be disclosed to facilitate the progress or resolution of any matters of relevance within the portfolio responsibilities of a Department of State of the Commonwealth that is administered by a Minister who administers any part of the social security law or the family assistance law. Subsection 19(1)(b) has been added from what was covered in former section 19(1) of the 2013 Guidelines to allow information to be disclosed to facilitate the progress or resolution of a matter of relevance to an agency responsible for the delivery of government services. This has been added to take into account the role of Services Australia and the National Indigenous Australians Agency in the schemes established under the social security law and family assistance law.

Subsection 19(2) provides that “a matter of relevance” to a Department of State of the Commonwealth that is administered by a Minister who administers any part of the social security law or the family assistance law or agency includes a program or activity that provides assistance or services to a class of people that includes people receiving payments or entitlements under the social security law or the family assistance law.

DEWR and other Departments of State of the Commonwealth that administer the social security law or family assistance law, as well as agencies such as Services Australia and the National Indigenous Australians Agency which deliver services under the social security law, also administer programs and schemes that deliver additional support and assistance to people who may or may not be in receipt of social security or family assistance payments or entitlements. This additional support does not necessarily fall within the social security law or the family assistance law. Section 19 enables the disclosure of information where it is necessary to facilitate or progress a departmental or agency program or activity that is designed to provide services to assists or support a class of people that includes people who receive social security or family assistance benefits or payments, whether or not that program or activity 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 202 of the Act, or by another section in these Guidelines.

Section 20 has been added from what was included in the 2013 Guidelines and allows for the disclosure of information where it is necessary for research into, or statistical analysis of, matters of relevance to a Department of State of the Commonwealth that is administered by a Minister who administers any part of the social security law or the family assistance law. This is intended to support research, evaluation and reporting on programs or activities designed to provide services to assist or support a class of people that includes people who receive social security or family assistance benefits or payments.

Section 21 has been added from what was included in the 2013 Guidelines and allows for the disclosure of information relevant to investigating and making decisions in relation to suspected breaches of the APS Code of Conduct. This section has been added because, although disclosure of such information and subsequent use is for the purposes of the social security law, there is nothing in the Guidelines which would allow a public interest certificate to be issued for disclosure (and subsequent use) for the purposes of investigating and making decisions in relation to suspected breaches of the APS Code of Conduct.

This new section 21 may assist investigation of circumstances where a person who has access to social security payment information, inappropriately uses that information for a financial benefit (for themselves or others) in breach of the Public Service Act 1999.

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

Part 3 sets out when a public interest certificate can be issued under paragraph 208(1)(a) of the Act in relation to a homeless young person. Part 3 in the Guidelines substantively replicates the former Part 3 in the 2013 Guidelines, with minor changes to some wording. Section 22 provides that this Part applies if relevant information relates to a homeless young person. It also provides definitions of the terms ‘homeless young person’ and ‘parent’ for the purposes of Part 3.

Section 23 sets out the requirements for when a public interest certificate can be issued.

Subsection 23(1) provides that a public interest certificate may be given by the Secretary if:

the information cannot reasonably be obtained from a source other than DEWR; and
the Secretary is satisfied that the disclosure will not result in harm to the homeless young person; and
the Secretary is satisfied that the disclosure is for at least one of the purposes mentioned in a provision in this Part.

Subsection 23(2) provides that a public interest certificate may also be given by the Secretary if:

the information cannot reasonably be obtained from a source other than DEWR; and
the disclosure will be made to a welfare authority of a State or Territory; and
the homeless young person to whom the information relates is in the care of a welfare authority of a State or Territory in accordance with the law of the State or Territory; or under 15 years; and
the Secretary is satisfied that the disclosure will not result in harm to the homeless young person.

Section 24 permits disclosure of information 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. This section allows the sharing of information so that appropriate action can be taken if there is abuse or violence within the family of a homeless young person.

Section 25 permits disclosure of information where necessary to verify a circumstance by which a homeless young person under the age of 15 years may qualify for a social security payment on the ground of being a homeless person. Information may also be disclosed if, in order to verify the circumstance, a parent or the parents of a homeless young person must be asked whether the homeless young person is able to live at the home of his or her parent/s. This section facilitates the disclosure of information to ensure a homeless young person receives appropriate social security payments to be able to support themselves where they are not able to live at home.

Section 26 permits disclosure of information to facilitate reconciliation, or possible reconciliation, between a homeless young person and his or her parent/s.

Section 27 permits disclosure of information where necessary to inform the parent or parents of a homeless young person whether that person has been in contact with a Department of State of the Commonwealth. This section will only apply where the parent or parents have sought such an assurance. This section facilitates reassurance being provided to the parent or parents that their child has sought and received support.

Statement of Compatibility with Human Rights

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

Social Security (Administration) (Public Interest Certificate Guidelines) (DEWR) Determination 2023 (Guidelines)

The Social Security (Administration) (Public Interest Certificate Guidelines) (DEWR) Determination 2023 (Guidelines) 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

Division 3 of Part 5 of the Act provides for the confidentiality of information obtained under the social security law, which outlines circumstances where protected information may be disclosed. Disclosing protected information where it is not permitted in accordance with this Division is a criminal offence. Personal information handled under the social security law is also protected by the Privacy Act 1988.

The Guidelines replace the Social Security (Administration) (Public Interest Certificate Guidelines) (DEEWR) Determination 2013 (2013 Guidelines). The Guidelines largely replicate the content of the 2013 Guidelines, however it expands the circumstances in which information may be disclosed to in a number of circumstances. In particular, section 12 which has been expanded to permit the disclosure of any other relevant person where the disclosure is for one of the specified purposes in section 12 and the new section 13 to permit the disclosure of information about any other relevant person where the disclosure is for one of the specified purposes in section 13.

Human rights implications

The Guidelines engage the following rights:

Right to privacy – Article 17 of the International Covenant on Civil and Political Rights (ICCPR);
Right of a child to such protection and care as is necessary for his or her well-being – Article 3.2 of the Convention on the Rights of the Child (CRC);
Child’s right to life – Article 6 of the CRC;
Right of a child to, as far as possible, be cared for by his or her parents – Article 7 of the CRC;
Right of a child to be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation – Article 19 of the CRC;
Right of a child who is temporarily or permanently deprived of his or her family environment to special protection and assistance – Article 20.1 of the CRC;
Right of a child to benefit from social security – Article 26 of the CRC; and
Right to an adequate standard of living – Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

ICCPR

Article 17 of the ICCPR relevantly provides that no one shall be subject to arbitrary or unlawful interference with their privacy and that everyone has the right to the protection of law against such interference or attacks. The right to privacy encompasses respect for information privacy, including the right to respect for private and confidential information, particularly the use and sharing of such information and the right to control dissemination of such information.

The Guidelines promote, or are reasonably proportionate to achieving human rights objectives. In particular:

Section 9, which permits the disclosures that are necessary to prevent or lessen a threat to life health or welfare, is consistent with, and promotes a number of human rights, including a range of liberties and rights outlined in the ICCPR;
Section 10, which permits disclosures to facilitate enforcement of a law, limits, for a just purpose, the right to privacy in that it will permit the Secretary (or delegate) to disclose information where necessary in the public interest to facilitate such enforcement. This is intended to allow for the timely disclosure of information to police and other law enforcement agencies, to allow them to monitor and conduct monitoring activities related to the criminal law, and prevent, detect, investigate and prosecute or punish criminal activity;
Section 11, which permits disclosures to make, support or enforce a proceeds of crime order, facilitates the existing proceeds of crime legislation, is proportionate to the objectives of that legislation and consistent with the legitimate human rights purposes of the criminal law;
Section 12, which permits disclosures related to missing persons, supporting courts, inquiries or commissioners in respect of identifying and locating missing persons;
Section 13, which permits disclosures related to deceased persons, supporting authorities in relation to the death of the persons, including establishing the death of a person and the place where the death is registered, as well as where necessary to assist the administrator or executor of the decease’s estate;
Section 14, which permits disclosures to help facilitate the just and equitable administration of public housing, is intended to assist the individual in accessing public housing;
Section 15, which permits disclosures to assist in the operation of the Families Responsibilities Commission, supporting the work of that commission under Queensland legislation;
Section 16, which permits disclosures to contact a person in relation to their possible entitlement to compensation or reparations, consistent with the human rights objectives of reparations or compensation;
Section 17, which permits disclosures to child protection agencies to assist those agencies contact a parent or relative in relation to a child, consistent with the rights of the child that are protected by child protection agencies;
Section 18, which permits disclosures to related confirming entitlement to social security related concessions for public utilities, is intended to assist the individual in accessing concessions for public utility bills;
Section 19, which permits disclosures related to a matter of relevance to a Department of State of the Commonwealth that is administering any part of social security law or the family assistance law, or to an agency responsible for the delivery of government services, facilitates public policy development and delivery, including to provide assistance or services to people who receive payments or entitlements under the social security law or the family assistance law;
Section 20, which permits disclosure for research into, or statistical analysis of, a matter of relevance to a Department of State of the Commonwealth that is administering any part of social security law, or the family assistance law facilitates public policy development;
Section 21, which permits disclosure for the purposes of investigating or making decisions under the APS Code of Conduct, which is for the public policy purpose of facilitating investigation where a public servant may have breached the Public Service Act 1999 or in appropriately claiming social security payments; and
Part 3, which permits disclosures in relation to a homeless young person, is consistent with, and promotes a number of human rights, particularly rights of the child.

CRC

Article 3.2 of the CRC provides that a child is entitled to such protection and care as is necessary for his or her well-being. Article 6 of the CRC provides for a child’s right to life. Article 19 of the CRC provides for the right of a child to be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation. Section 24 of the Guidelines promotes these rights by permitting the disclosure of information about abuse or violence a homeless young person has been subjected to or exposed to.

Article 20.1 of the CRC provides for the right of a child who is temporarily or permanently deprived of his or her family environment to special protection and assistance. Article 26 of the CRC provides for the right of a child to benefit from social security. Section 25 of the Guidelines promotes this right by permitting the disclosure of information to ensure that a homeless young person receives appropriate social security support.

Article 7 of the CRC includes provision for the right of a child to, as far as possible, be cared for by his or her parents. Sections 26 and 27 of the Guidelines promotes this right by permitting the disclosure of information to facilitate continuing connection between a homeless young person and their parents.

ICESCR

Article 11 of the ICESCR provides for the right to an adequate standard of living. Sections 14 and 18 of the Guidelines promote this right by permitting the disclosure of information to facilitate access to public housing and assistance with bills for public utilities.

Concluding remarks

These Guidelines are compatible with human rights. To the extent that the right to privacy is limited, those limitations are reasonable, necessary and proportionate, and appropriate safeguards are in place.

Social Security (Administration) (Public Interest Certificate Guidelines) (DEWR) Determination 2023

Administered by Department of Employment and Workplace Relations

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