EXPLANATORY STATEMENT
Social Security (Public Interest Certificate Guidelines) (DEEWR) Amendment Determination 2008
Summary
The Social Security (Public Interest Certificate Guidelines) (DEEWR) Amendment Determination 2008 (‘the Determination’) is made under subparagraph 209(a)(i) and paragraph 209(b) of the Social Security (Administration) Act 1999 (‘the Act’).
The purpose of the Determination is to amend the Social Security (Public Interest Certificate Guidelines) (DEEWR) Determination 2008 (‘the Guidelines’) which specify guidelines for the exercise of the power of the Secretary of the Department of Education, Employment and Workplace Relations (DEEWR), or the Secretary’s delegate, to disclose information if it is in the public interest to do so.
The Determination amends the Guidelines with effect from the day after this Determination is registered.
The disclosure of protected information to a person, under subparagraph 208(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
Section1 states the name of the Determination.
Section 2 provides that the Determination commences the day after it is registered.
Section 3 provides that Social Security (Public Interest Certificate Guidelines) Determination 2008 is amended by Schedule 1 of the Determination.
Schedule 1
This Schedule inserts two new sections to Part 2 of the Guidelines.
Item 1 deletes and replaces paragraph 7(1)(c). New paragraph 7(1)(c) provides that a public interest certificate may be given by the Secretary if that disclosure is for the purpose of section 8, 9, 10, 11, 12, 14, 15,16, 16A, 16B or subsection 13(1) or 13(2). This reflects that Item 2 inserts new sections 16A and 16B to Part 2 of the Guidelines.
Item 2 inserts into Part 2 of the Guidelines new sections 16A (Establishment of Family Responsibilities Commission) and 16B (Matters of Relevance).
Subsection 16A(1) permits disclosure where it is necessary for the purpose of the establishment of the Queensland Family Responsibilities Commission under section 9 of the Family Responsibilities Commission Act 2008 (Qld) (FRC Act) 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 (FRC) which has been established by the 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 Centrelink, to the FRC will facilitate the operation of 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 16A(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 sufficient interest in the information and the information cannot be obtained other than from Centrelink or the Department. A certificate issued under paragraph 208(1)(a) of the Act would also specify who the disclosure can be made to in a given circumstance.
Subsection 16A(2) provides that in section 16A, the Family Responsibilities Commission means the Commission established by section 9 of the Family Responsibilities Commission Act 2008 (Qld).
Section 16B provides that protected information can be released where this is done for facilitating the progress or resolution of a matter (i.e. a matter that is not already covered by section 202 of the Act that is relevant to any department administering the social security, family assistance law or the Student Assistance Act 1973. This new section would enable a delegate to release information in the public interest where unusual or urgent circumstances have arisen, and the disclosure is not already covered by a specific provision in the Guidelines. Section 16B mirrors section 15 of the Family Assistance (Public Interest Certificate) Guidelines 2006, a provision which has been in force for a number of years.
Section 16B is also subject to section 7 of the Guidelines which requires that any disclosure to a person can only occur where that person has sufficient interest in the information and the information cannot be obtained other than from Centrelink or the Department. A certificate under paragraph 208(1)(a) of the Act would also specify who specifically the disclosure can be made to in a given circumstance.
Consultation
The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) were consulted in making the changes to the Guidelines. FaHCSIA consulted the Office of the Federal Privacy Commissioner in relation to the proposed new section 16A (Family Responsibilities Commission) and section 16B (Matters of Relevance) of these guidelines.
Regulatory Analysis
This Determination does not require a Regulatory Impact Statement and/or a Business Cost Calculator Figure. The 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 this Determination.