Social Security (Public Interest Certificate Guidelines) Determination 2005 (DEWR)

Administered by Department of Employment and Workplace Relations

Legislation au F2005L03511 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Social Security (Public Interest Certificate Guidelines) Determination 2005 (DEWR)

Summary

This Determination is made under subparagraph 209(1)(a)(i) of the Social Security (Administration) Act 1999 (the Administration Act).

 

The purpose of this Determination is to create guidelines to facilitate the disclosure of information under subparagraph 208(1)(a) of the Administration Act.  This allows for the disclosure of information where it is in the public interest.

 

Part 1—Preliminary

Part 1 sets out the 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 Employment and Workplace Relations is to have regard (section 5).

Section 5 of Part 1 provides that in giving 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 or intervention themselves.

Part 2—Guidelines—public interest certificate (general)

Part 2 sets out how the release of protected information can occur under paragraph 208(1)(a) of the Social Security (Administration) Act 1999 in general terms 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:

(i) the information cannot be obtained from another source;

(ii) the disclosure is to a person who has sufficient interest in the information; and

(iii) that disclosure is for the purpose of section 7, 8, 9 or 10 or subsections 11(1) or (2).

Subsection 6(2) specifies that sufficient interest is a genuine and legitimate interest in the information.

Section 7 permits disclosure of protected information to prevent, or lessen, a threat to the life, health or welfare of a person.  This reflects Information Privacy Principle (IPP) 11(1)(c).

Subsection 8(1) permits disclosure of protected information for the enforcement of laws, whether that be the criminal law in relation to an indictable offence punishable by imprisonment of 2 years or more, or a law imposing a pecuniary penalty equivalent of at least 40 penalty units, or to prevent an act that may have a significant adverse effect on the public revenue.  This reflects IPP 11(1)(e).  The disclosure must relate to an offence or a threatened offence against a Commonwealth employee, Commonwealth property or Department or Centrelink premises.

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 Department of Employment and Workplace Relations where either the integrity of the program is at risk if the mistake of fact is not corrected or the mistake of fact has been, or will be, published.

Disclosure of protected information 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 missing person is provided by section 10.  Disclosure will not occur if there are reasonable grounds to believe that the missing person would not want the information disclosed.

Disclosure of protected information 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 is provided by subsection 11(1).  Disclosure will not occur if there are reasonable grounds to believe that the deceased person would not have wanted the information disclosed.  Subsection 11(2) provides that the only relevant information that is able to be disclosed is to establish the death of the person or that 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 paragraph 208(1)(a) of the Social Security (Administration) Act 1999 in relation to homeless young people for the purposes of the social security law.

Section 12 is an application provision.  Subsection 12(1) provides that disclosure of information under Part 3 only applies to a homeless young person.  Subsection 12(2) provides a definition of homeless young person and also of parent.

Subsection 13(1) provides that for the purposes of Part 3, a public interest certificate may be given by the Secretary if:

(i) the information cannot be obtained from another source;

(ii) no harm will result to the homeless young person if information is disclosed; and

(iii) that disclosure is for the purpose of section 14, 15, 16 or 17.

Subsection 13(2) provides that for the purposes of Part 3, a public interest certificate may be given by the Secretary if:

(i) the information cannot be obtained from another source;

(ii) the disclosure is to a welfare authority of a State or Territory;

(iii) the homeless young person is either in the care of a welfare authority of a State or Territory or is under 15 years of age; and

(iv) no harm will result to the homeless young person if information is disclosed.

Section 14 permits disclosure of protected information to an appropriate authority if the information is about a family member of a homeless young person and 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 15.

In the cases of a reconciliation between the homeless young person and his or her parent or parents, disclosure of information to facilitate the reconciliation may be made under section 16.

Section 17 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, that the homeless young person has been in contact with Centrelink.

 

Consultation

To ensure consistency across departments responsible for the social security law, the substantive parts of this determination are the same as the Social Security (Public Interest Certificate Guidelines) Determination 2002, which were made by the Minister for Family and Community Services.  Consultation with external organisations was not undertaken as this determination replicates another instrument already in force.

The Department of Family and Community Services, Department of Human Services and Department of Education, Science and Training are all aware that the Minister for Employment and Workplace Relations intended to make these guidelines.

 

Overview

The Social Security (Public Interest Certificate Guidelines) Determination 2005, enacted by the Department of Employment and Workplace Relations, aims to provide guidelines for the disclosure of information under the Social Security (Administration) Act 1999 where such disclosure is in the public interest. The Determination was made under subparagraph 209(1)(a)(i) of the Administration Act, with the policy objective to ensure that protected information can be released in situations where it is critical for the welfare and safety of individuals, particularly those who may be unable to seek assistance themselves due to factors such as abuse, age, disability, or social circumstances. This Determination allows for the disclosure of protected information to prevent threats to life, health, or welfare, enforce laws, correct administrative errors, assist in locating missing persons or deceased persons, and support the welfare of homeless young people. The guidelines emphasise the importance of protecting the interests of vulnerable individuals while facilitating necessary information sharing in the public interest.

Scope and Application

The Social Security (Public Interest Certificate Guidelines) Determination 2005 applies to the disclosure of information under the Social Security (Administration) Act 1999 (Administration Act) and is made under subparagraph 209(1)(a)(i) of the Administration Act. The guidelines are designed to facilitate the disclosure of information where it is in the public interest. The application of the Determination extends to individuals who are, or may be, subject to abuse or violence, as well as homeless young people, their families, and welfare authorities of the states or territories. The guidelines are primarily relevant to the Department of Employment and Workplace Relations and its associated agencies, particularly Centrelink. They also apply to situations where information must be disclosed to enforce laws, prevent threats to life or health, correct administrative errors, assist in locating missing persons, or manage the estates of deceased individuals. Geographic reach is not explicitly restricted, thus it applies nationally. The Determination does not specify any exclusions, exemptions, or thresholds, but the issuance of a public interest certificate depends on specific conditions being met, such as the unavailability of information from another source and the absence of potential harm to the individuals involved. The Determination also notes that the substantive parts of this instrument replicate those of the Social Security (Public Interest Certificate Guidelines) Determination 2002, with no external consultation undertaken due to this replication.

Key Provisions

The Social Security (Public Interest Certificate Guidelines) Determination 2005 (DEWR) is instrumental in guiding the disclosure of protected information under the Social Security (Administration) Act 1999 (the Administration Act). This Determination, under subparagraph 209(1)(a)(i) of the Administration Act, aims to provide clear guidelines for the disclosure of information deemed necessary in the public interest. The main operative sections of the Determination focus on establishing the conditions under which protected information can be disclosed (section 6), the purposes for such disclosure (sections 7 to 11), and special provisions for homeless young people (sections 12 to 17). The Determination emphasises that disclosure is permissible if the information cannot be obtained from another source, if there is a genuine and legitimate interest in the information (subsection 6(2)), and if the disclosure is for specific purposes such as preventing threats to life, health, or welfare (section 7), enforcing laws (section 8), correcting administrative errors (section 9), locating missing persons (section 10), or assisting in the administration of deceased persons’ estates (subsection 11(1)). The Determination imposes specific obligations on the parties involved, particularly on the Secretary of the Department of Employment and Workplace Relations. When issuing a public interest certificate, the Secretary must consider various factors, including the potential for physical, psychological, or emotional abuse of the person to whom the information relates (section 5). The Secretary must also consider whether the person may be unable to give notice of their circumstances due to age, disability, or other social, cultural, or family reasons. This is intended to ensure that the release of protected information is justified and necessary, especially when the individual is unable to seek assistance or intervention themselves. Failure to comply with the provisions of this Determination can result in legal consequences. While the Determination itself does not explicitly state the penalties for breaches, the underlying legislation, the Social Security (Administration) Act 1999, provides a framework for potential penalties. Breaches of the Act may lead to civil or criminal proceedings, with penalties that can vary depending on the nature and severity of the breach. Civil penalties may include fines, while criminal penalties could involve imprisonment, reflecting the seriousness with which the law treats the misuse or improper disclosure of protected information. Overall, the Social Security (Public Interest Certificate Guidelines) Determination 2005 (DEWR) serves as a critical regulatory tool for balancing the need to disclose sensitive information in the public interest with the protection of individuals' privacy and welfare. By setting out clear guidelines and obligations, the Determination helps ensure that any disclosure of protected information is justified, necessary, and conducted in a manner that minimises harm to affected individuals.

Legal classification tags

Area of Law
Social Security Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Disclosure of Information
Protected Information
Public Interest
Catchwords
Public Interest Certificate

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.