Social Security (Public Interest Certificate Guidelines) (FaHCSIA) Determination 2008

EXPLANATORY STATEMENT

Social Security (Public Interest Certificate Guidelines) (FaHCSIA) Determination 2008

Summary

The Social Security (Public Interest Certificate Guidelines) (FaHCSIA) Determination 2008 (‘the Guidelines’) are made under subparagraph 209 (a)(i) and paragraph 209 (b) 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, Housing, Community Services and Indigenous Affairs (FaHCSIA), or the Secretary’s delegate, to disclose information if it is in the public interest to do so.

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.

Section 209 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.

Changes to the 2007 Guidelines

The Guidelines revoke the Social Security (Public Interest Certificate Guidelines) (FaCSIA) Determination 2007.  The new Guidelines largely replicate the 2007 Guidelines, subject to the following changes.

There is a minor consequential amendment to section 5 on the amendment to new section 16.

There is also a minor amendment to the wording of section 7, to include the words ‘or Centrelink’.  This is intended to clarify the operation of this provision.

New section 14 facilitates the disclosure of information to ensure children are enrolled and attending school.

New section 15 allows for the disclosure of information to assist in school resource and infrastructure requirements being determined and monitored.  

New section 16 allows for the disclosure of information for the purposes of a dental plan or scheme, or proposed plan or scheme, administered by the CEO of Medicare or the Department of Health and Ageing.

New section 17 allows for the disclosure of information for the purposes of the establishment and operation of the Queensland Family Responsibilities Commission, which is established under the Family Responsibilities Commission Act 2008 (Qld).

New section 18 allows for the disclosure of information that is necessary for the purposes of facilitating the progress or resolution of matters of relevance to a department that is administering any part of the family assistance law or social security law.

In relation to sections 5, 7, 14, 15 and 16, these amendments to the FaHCSIA Guidelines mirror the Guidelines recently issued by the Minister for Education, Employment and Workplace Relations (DEEWR).

Part 3 has been renumbered appropriately.

A detailed description of the full Guidelines follows.

Part 1 – Preliminary

Part 1 sets out preliminary information about the Guidelines, namely, the name of the Guidelines (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, Housing, Community Services and Indigenous Affairs is to have regard (section 6).

Section 5 has been amended to include a definition of ‘CEO of Medicare Australia’.

Section 6 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 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.

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 other than the Department or Centrelink; and
• 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, 12, 14, 15,16 or subsection 13(1) or 13(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 Principal (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;
• for the enforcement of a law imposing a pecuniary penalty equivalent to 40 penalty units or more; 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.

Paragraph 9(1)(b) allows for disclosure where it relates to an offence or threatened offence against a Commonwealth employee or Commonwealth property, or in departmental or Centrelink premises.

Subsection 9(2) defines the terms ‘criminal law’ and ‘penalty unit’.

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 permits 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 the Minister 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 permits 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) permits disclosure of protected information where the information is to establish the death of a person or the place where the death of the person is registered.

Section 14 permits disclosure of protected information where it is necessary to ensure a child who should be enrolled or attending school is enrolled or attending.  As part of provisions contained in Part 3B of the Act, Centrelink may collect information from parents or schools regarding the enrolment or attendance of children at school. However, state and territory education departments and schools will not necessarily have certain information collected by Centrelink on their own records, for example they may not be aware of children who are not enrolled.  Section 14 will facilitate such information to be disclosed to ensure children who should be enrolled and attending school under State and Territory laws are so enrolled and attending in accordance with those laws.

Attendance at school is one of the principal indicators for school achievement and students who are regularly absent from school are those at greatest risk of dropping out of school early, becoming long-term unemployed, dependent on welfare and being involved in the justice system. It is therefore in the public interest for information held by the Commonwealth with regard to children of compulsory school age who are not enrolled or attending regularly to be provided to relevant state/territory authorities and schools. This is so action can be taken to facilitate enrolment and improve attendance in accordance with State/Territory laws.

Section 15 permits the disclosure of information where it is necessary to plan for, meet or monitor infrastructure and resource needs in one or more schools.

It is estimated that approximately 20,000 children of compulsory school age are not currently enrolled in school in Australia. State/Territory authorities and schools possess little to no information in order to ensure relevant schools have sufficient capacity to handle additional demand should these children be enrolled. The disclosure of protected information about non-enrolled children will assist in the identification of geographic areas of potential demand in relation to school infrastructure and teacher capacity. This is particularly important in the Northern Territory context where the Territory government will need to ensure it can accommodate a potentially significant increase in student numbers in particular areas as a result of efforts to increase school enrolment and attendance by children of compulsory school age.

Importantly, information can only be disclosed where a certificate has been issued setting out that it is necessary for the purposes as described in new sections 14 and 15 for the disclosure to occur. Any certificate would also clearly set the specific information that can be disclosed. In respect of any disclosures for determining infrastructure requirements, a decision would be made as to whether de-identified statistical data would suffice. In instances where this would not assist in infrastructure planning, protected information may be disclosed. 

Sections 14 and 15 are also subject to section 7 of this Determination which requires that any disclosure to a person can only occur where that person has genuine and legitimate interest and the information cannot be obtained other than from Centrelink or the Department. A certificate would also specify who specifically disclosure can be made to in a given circumstance.

Subsection 16(1) permits disclosure of protected information which is necessary to assist in the development of and eligibility for a dental program or scheme or proposed dental program or scheme administered or to be administered by either the Commonwealth Department of Health and Ageing or Medicare Australia.

This section is aimed at the Australian Government’s proposed Teen Dental Plan where eligible families will receive $150 per child to assist with dental check ups for teenagers. It is intended that, subject to other eligibility criteria, a child who is receiving youth allowance will be eligible for the $150 rebate. In order to facilitate information about the Teen Dental Plan being provided to families who may be eligible for the rebate it is necessary that certain protected information be disclosed to either or both the Department of Health and Ageing or the CEO of Medicare Australia. This will assist with the implementation of this plan which is aimed at lessening the risks of teenagers having major dental problems later in life.

Subsection 16(2) provides that section 16 ceases to have effect on the day after both the Dental Benefits Act 2008 and the Dental Benefits (Consequential Amendments) Act 2008 have received Royal Assent. It is intended that information disclosure provisions for ongoing purposes will be included in that legislation.

Subsection 17(1) provides for relevant protected information to be disclosed where it is necessary for the purpose of the establishment of the Queensland Family Responsibilities Commission 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 which has been established by the Family Responsibilities Commission Act 2008 (Qld) (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 FaHCSIA, through 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 17(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 genuine and legitimate interest and the information cannot be obtained other than from Centrelink or the Department. A certificate issued under section 208 of the Act would also specify who disclosure can be made to in a given circumstance.

Subsection 17(2) provides that in section 17, the Family Responsibilities Commission means the Commission established by section 9 of the Family Responsibilities Commission Act 2008 (Qld).

Section 18 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 Social Security (Administration) Act 1999) that is relevant to any department administering any part of the social security or family assistance law.  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 18 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 18 is also subject to section 7 of this Determination which requires that any disclosure to a person can only occur where that person has genuine and legitimate interest and the information cannot be obtained other than from Centrelink or the Department. A certificate under section 208 of the Act would also specify who specifically disclosure can be made to in a given circumstance.

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.

Part 3 has been renumbered to account for the three new sections inserted in Part 2 of the Guidelines.

Section 19 provides that this Part applies in regard to a homeless young person and provides a definition for ‘homeless young person’ and ‘parent’ for the purposes of Part 3.

Subsection 20(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 other than the Department or Centrelink;
• 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 21, 22, 23 or 24..

Subsection 20(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 other than the Department or Centrelink;
• 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 21 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.

Section 22 permits disclosure of information if it is necessary to verify the circumstances by which a homeless young person under the age of 15 years may qualify for a social security payment and to verify the circumstances of the young person, a parent or the parents of a homeless young person must be asked whether the homeless young person is able to live at the home of his or her parent or parents.

Section 23 permits disclosure of information to facilitate reconciliation or possible reconciliation between a homeless young person and his or her parent or parents.

Section 24 permits disclosure of information about a homeless young person to a parent, or parents, of a homeless young person if it is necessary to assure the parent or parents that the homeless young person has been in contact with the relevant department or with Centrelink but only where the parent or parents have sought such an assurance.

Consultation

In relation to the minor amendments to sections 5 and 7, to new sections 14 (school enrolment and attendance), section 15 (school infrastructure) and section 16 (dental schemes), these Guidelines mirror the Guidelines made on 29 April 2008 by the Minister for [D]EEWR.  It is understood that DEEWR consulted with the Office of the Federal Privacy Commissioner in relation to these amendments.  FaHCSIA has advised DEEWR of these proposed changes to the FaHCSIA Guidelines.

DEEWR and the Office of the Federal Privacy Commissioner were consulted on the proposed new section 17 (Family Responsibilities Commission) and section 18 (Matters of Relevance) of these Guidelines.

Regulatory 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 as a result of these Guidelines.