EXPLANATORY STATEMENT

Social Security (Public Interest Certificate Guidelines) (DEST) Determination 2006

Summary

The Social Security (Public Interest Certificate Guidelines) (DEST) Determination 2006 (the Guidelines) are made under paragraph 209(1)(a)(i) of the Social Security (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 Education, Science and Training, or the Secretary’s delegate, to disclose information if it is in the public interest to do so.

Subsection 209(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 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

Part 1 sets out preliminary information about the Determination, namely, the name of the determination (section 1), commencement (section 2),  purpose (section 3), definitions (section 4) and matters to which the Secretary of the Department of Education, Science and Training is to have regard (section 5).

Section 5 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 5 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 208(1)(a)(i) of the Act for the purposes of the social security law. 

Subsection 6(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 7, 8, 9, 10 or 11 or subsection 12(1) or (2).

Subsection 6(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 7 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 8(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 8(2).

Section 9 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 10 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 Centrelink error or delay; or
• to brief a Minister about an anomalous or unusual operation of the social security law.

Section 11 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 12(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 12(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.

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

Part 3 sets out how the release of protected information can occur under subparagraph 208(1)(a)(i) of the Act in relation to homeless young people for the purposes of a social security payment. 

Section 13 provides that this Part applies in regard to a homeless young person and also provides relevant definitions for the purposes of this Part.

Subsection 14(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 15, 16, 17 or 18.

Subsection 14(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 15 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 payment is sanctioned by section 16.

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 17.

Section 18 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 Centrelink.

Consultation

The Department of Families, Community Services and Indigenous Affairs and the Department of Employment and Workplace Relations were consulted in the making of this Determination, to ensure a co‑ordinated approach in respect of payments under the Act for which they have responsibility.  The Department of Human Services was also consulted in relation to service delivery issues.

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.