EXPLANATORY STATEMENT

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

Social Security (Administration) Act 1999

Section 204 of the Social Security (Administration) Act 1999 (the Administration Act) prohibits the recording, disclosure or use of protected information unless authorised or required by or under the social security law, the family assistance law or the Farm Household Support Act 1992 (the FHS Act).

Protected information is defined in the Social Security Act 1991 (the Social Security Act), and incorporated into the Administration Act, as certain information held in the records of the Department, Centrelink, the Australian Taxation Office or Medicare Australia or information to the effect that there was no information about a person held in those records.

Section 202 of the Administration Act provides that protected information may be disclosed for the purposes of the social security law or the FHS Act, or for the purposes of the Family Homelessness Prevention and Early Intervention Pilot, or for the purpose for which the information was disclosed under section 207 or 208 of the Act.

Section 207 of the Administration Act prevents certain information being required from an officer by courts and other bodies and people who have the power to require the production of documents or to require questions to be answered.

Paragraph 208(1)(a) of the Administration Act provides that the Secretary may, if the Secretary certifies that it is necessary in the public interest to do so, disclose information acquired by an officer in the performance of his or her functions or duties or in the exercise of his or her powers under the social security law or the FHS Act.

Subsection 208(2) requires the Secretary to act in accordance with guidelines from time to time in force under section 209 of the Administration Act.

Subparagraph 209(1)(a)(i) provides that the Minister, by determination in writing, is to determine guidelines for the exercise of the Secretary’s power to give certificates for the purposes of paragraph 208(1)(a). Paragraph 209(1)(b) provides that the Minister may revoke or vary those guidelines.

Subsection 209(2) of the Administration Act provides that such directions are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.  Under subparagraph 6(d)(i) of the Legislative Instruments Act 2003, instruments that were disallowable before the commencement of that Act are legislative instruments.

The Minister for Employment and Workplace Relations made a determination under section 209 in 2005 (the 2005 Determination).

The Social Security (Public Interest Certificate Guidelines) Determination 2006 (the new Determination) revokes and replaces the 2005 Determination (section 3 of the new Determination refers).

The new Determination commences on the day after it is registered on the Federal Register of Legislative Instruments (section 2 of the new Determination refers).

The new Determination contains a new purpose for which information about a person (including protected information) acquired by an officer in the performance of his or her functions or duties, or in the exercise of his or her powers, under the social security law or the FHS Act (relevant information) may be disclosed.

That new purpose is contained in section 11 of the new  Determination which provides that relevant information may be disclosed if the Secretary is satisfied the disclosure is necessary:

(a) to brief a Minister so that the Minister can consider complaints or issues raised by or on behalf of a person with the Minister (in writing or orally), and respond to that person in relation to the complaints or issues; or

(b) to brief a Minister for a meeting or forum that the Minister is to attend;

(c) to brief a Minister in relation to issues raised or proposed to be raised publicly by or on behalf of the person to whom the relevant information relates 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; or

(d) to brief a Minister about an error or delay in the part of Centrelink; or

(e) to brief a Minister about an instance of an anomalous or unusual operation of the social security law.

As well as meeting these requirements, the disclosure can only occur if the information cannot reasonably be obtained from a source other than the Department, and the person to whom the information will be disclosed has sufficient interest in the information or is a Minister (section 7 of the new Determination refers).

‘Minister’ is defined in section 5 of the new Determination to mean a Minister of State administering any part of the social security law or the Commonwealth Services Delivery Agency Act 1997, or the Prime Minister.  Currently the definition covers the Minister for Families, Community Services and Indigenous Affairs, the Minister for Education, Science and Training, the Minister for Employment and Workplace Relations and the Minister for Human Services.

Before the new Determination was made protected information could only be disclosed to these Ministers if the disclosure:

• was for the purposes of the social security law, the FHS Act or the Family Homelessness Prevention and Early Intervention Pilot;
• was for the purpose for which the information was originally disclosed under section 207 or 208;
• satisfied one of the existing public interest guidelines; or
• was authorised by the person to whom the information relates.

Minor amendments have been made to the purpose provision of the new Determination (to reflect a similar determination made under the A New Tax System (Family Assistance) (Administration) Act 1999).  Amendments have also been made to Note 2 to remove the reference to ‘homeless person’ which is no longer defined in the Social Security Act and to renumber the sections of the Determination.

The new Determination is one of three substantively identical determinations proposed to be made under section 209 of the Administration Act by the three Ministers who administer parts of the social security law (the Minister for Families, Community Services and Indigenous Affairs, the Minister for Education, Science and Training, and the Minister for Employment and Workplace Relations).

No consultation was undertaken under section 17 of the Legislative Instruments Act 2003 before the Determination was made, as the changes to the Determination only affect intra-Governmental administrative arrangements (the briefing of Ministers), and it does not have a direct, or a substantial indirect, effect on business, or to restrict competition.