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Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2007

Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2007

Administered by Department of Social Services

Legislation au F2007L03849 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Summary

The Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2007 (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 Families, Community Services and Indigenous Affairs, 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.

The Guidelines revoke the Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2006 and amend section 13 of the Guidelines to extend the range of situations in which information about deceased persons can be disclosed.

Part 1—Preliminary

Part 1 sets out preliminary information about the Determination, namely, the name of the determination (section 1), commencement (section 2), revocation of the former instrument (section 3), purpose (section 4), definitions (section 5) and matters to which the Secretary of the Department of Families, Community Services and Indigenous Affairs is to have regard (section 6).

Section 6 provides for matters in 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 6 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 7(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 8, 9, 10, 11 or 12 or subsection 13(1) or (2).

Subsection 7(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 8 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 9(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 9(2).

Section 10 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 11 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 12 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 13(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; or is in relation to Centrelink transferring information regarding the deceased person who, prior to their death, was qualified for, or in receipt of Australian age pension to the authority responsible for administering the social security system in the United Kingdom. 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 13(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 14 provides that this Part applies in regard to a homeless young person and also provides relevant definitions for the purposes of this Part.

Subsection 15(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 16, 17, 18 or 19.

Subsection 15(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 16 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 17.

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 18.

Section 19 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

FaCSIA has consulted officers from the Department of Education, Science and Training and the Department of Employment and Workplace Relations in the making of this Determination, and they have advised that they support FaCSIA’s minor amendment to the Guidelines. The Department of Human Services was also consulted in relation to service delivery issues.

Regulatory Impact Analysis

These Guidelines do not require a Regulatory Impact Statement and/or a Business Cost Calculator Figure. These 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 (against the nine categories listed) as a result of these Guidelines.

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.

Changes from previous instrument

Aside from some minor technical and consequential amendments, the only major difference between this Instrument and the Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2006 is a modification to section 13, which deals with the release of information of deceased persons who were formerly in receipt of the Age Pension. The Department of Families, Community Services and Indigenous Affairs (FaCSIA) alone has responsibility, under the social security law, for persons in receipt of Age Pension.

Overview

The Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2007 was enacted to provide guidelines for the disclosure of information under the Social Security (Administration) Act 1999, addressing the need for clear protocols on when and how information can be disclosed if it is in the public interest to do so. This Determination was made under the authority of the Social Security Act and is a disallowable instrument, meaning it can be reviewed and potentially disallowed by Parliament. The primary objective of these guidelines is to ensure that the disclosure of sensitive social security information is handled appropriately, safeguarding both the privacy of individuals and the public interest. The Department of Families, Community Services and Indigenous Affairs (FaCSIA) is responsible for these guidelines, with a focus on protecting vulnerable individuals, such as those who might be subject to abuse or those who are unable to seek assistance themselves. The guidelines also clarify the limited circumstances under which information can be disclosed to other parties, ensuring that such disclosures are strictly controlled and authorised by law.

Scope and Application

The Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2007 applies to the Secretary of the Department of Families, Community Services and Indigenous Affairs, or their delegate, in relation to the disclosure of protected information under the Social Security (Administration) Act 1999. This Act pertains to the administration of social security payments and services in Australia. The Guidelines specify the circumstances under which the disclosure of protected information is considered to be in the public interest. The application of these Guidelines is national, given that the Social Security (Administration) Act 1999 is a Commonwealth Act. However, the Guidelines allow for the disclosure of information to State or Territory authorities, thus extending their reach to these jurisdictions as well. Notably, the Guidelines do not apply to any entities outside the scope of the Social Security (Administration) Act 1999. There are no explicit exclusions or exemptions detailed within the Guidelines themselves, but the determination of what constitutes a "public interest" may inherently exclude certain disclosures. The Guidelines are not intended to have a regulatory impact and do not impose compliance costs or competition impacts on businesses. The Guidelines revoke the 2006 version and make minor amendments, primarily extending the range of situations in which information about deceased persons can be disclosed. The Guidelines are a legislative instrument and are subject to disallowance under the Acts Interpretation Act 1901.

Key Provisions

The Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2007 (the Guidelines) sets out the framework for the disclosure of protected information by the Secretary of the Department of Families, Community Services and Indigenous Affairs or their delegate, when it is in the public interest to do so. The Guidelines apply under paragraph 209(1)(a)(i) of the Social Security (Administration) Act 1999 (the Act) and provide specific instances where such disclosure is permitted. The Guidelines also serve to replace the Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2006, with an amendment extending the range of situations in which information about deceased persons can be disclosed. Under section 6, the Secretary must consider certain factors when deciding to issue a public interest certificate. These include whether the person to whom the information relates is or may be subject to physical, psychological or emotional abuse and whether they may be unable to give notice of their circumstances due to age, disability, or social, cultural, family or other reasons. This requirement underscores the importance of releasing protected information where individuals are not in a position to seek assistance themselves. Section 7(1) stipulates the conditions under which a public interest certificate may be issued. This includes the information not being reasonably obtainable from another source, the disclosure being to a person with a sufficient interest in the information, and the disclosure being for specific purposes outlined in sections 8 to 13 of the Guidelines. A person has a sufficient interest if they have a genuine and legitimate interest in the information or are a Minister. Section 8 allows for the disclosure of protected information to prevent, or lessen, a threat to the life, health or welfare of a person. Section 9 permits disclosure necessary for the enforcement of a criminal law in relation to an indictable offence punishable by imprisonment of two years or more or to prevent an act that may have a significant adverse effect on public revenue. Section 10 allows for the disclosure of information to correct a mistake of fact in the administration of a program where the integrity of the program is at risk or the mistake has been or will be published. Section 11 permits disclosure necessary for enabling a Minister to consider complaints, brief for meetings, or respond to issues raised by or on behalf of a person. Section 12 allows for the disclosure of information to assist a court, coronial enquiry, Royal Commission, department or any other authority of a State or Territory in locating a missing person, provided there is no reasonable ground to believe the missing person would not want the information disclosed. Section 13 allows for the disclosure of information to assist in locating relatives or beneficiaries of a deceased person, administering the estate of a deceased person, or transferring information regarding the deceased person who was qualified for, or in receipt of Australian age pension to the relevant authority in the United Kingdom, provided there is no reasonable ground to believe the deceased person would not have wanted the information disclosed. Sections 14 to 19 of Part 3 of the Guidelines provide specific guidelines for the disclosure of information in relation to homeless young people. A public interest certificate may be issued under section 15 if the information cannot be obtained from another source, if the Secretary is satisfied that no harm will result to the homeless young person if information is disclosed, and if the disclosure is for one of the purposes outlined in sections 16 to 19. Section 16 allows for disclosure 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 has been subjected to abuse or violence. Section 17 allows for disclosure to verify a circumstance by which a homeless young person under the age of 15 years may qualify for a social security payment. Section 18 permits disclosure to facilitate a reconciliation between the homeless young person and their parent or parents. Section 19 allows for disclosure to a parent, or parents of the homeless young person to assure them that the homeless young person has been in contact with the Department or Centrelink. There are no specific offences, penalties, or civil/criminal consequences outlined in the Guidelines themselves. However, the unauthorised disclosure of protected information by a person who receives it under a public interest certificate is an offence under the Act, with potential penalties including fines and imprisonment. The specific penalties for such offences would be governed by the provisions of the Act.

Area of Law: Privacy Law; Social Security Law
Instrument: Regulation
Concepts: Definitions & Interpretation; Reporting & Disclosure Obligations; Regulatory Standards

Interactions

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.

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