EXPLANATORY STATEMENT
Student Assistance (Public Interest Certificate Guidelines) Amendment Determination 2008
Summary
The Student Assistance (Public Interest Certificate Guidelines) Amendment Determination 2008 (‘the Determination’) is made under paragraphs 356(1)(a) and 356(1)(c) of the Student Assistance Act 1973 (‘the Act’).
The purpose of the Determination is to amend the Student Assistance (Public Interest Certificate Guidelines) Determination 2008 (‘the Guidelines’) which specify guidelines for the exercise of the power of the Secretary of the Department of Education, Employment and Workplace Relations (DEEWR), or the Secretary’s delegate, to disclose information if it is in the public interest to do so.
The Determination amends the Guidelines with effect from the day after this Determination is registered.
The disclosure of protected information to a person, under paragraph 355(1)(a) 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
Section 2 provides that the Determination commences the day after it is registered.
Section 3 provides that Student Assistance (Public Interest Certificate Guidelines) Determination 2008 is amended by Schedule 1 of the Determination.
Schedule 1
Amendments made in this Schedule insert two new sections to Part 2 of the Guidelines.
Item 1 deletes and replaces paragraph 6(1)(c) to reflect the new sections in the instrument so that for the purposes of Part 2, a public interest certificate may be given by the Secretary if that disclosure is for the purpose of section 7, 8, 9, 10, 11, 13, 14, 15, 15A, 15B or subsection 12(1) or 12(2). This reflects that Item 2 inserts new sections 15A and 15B to Part 2 of the Guidelines.
Item 2 inserts into Part 2 of the Guidelines new sections 15A (Establishment of Family Responsibilities Commission) and 15B (Matters of Relevance).
Subsection 15A(1) permits disclosure where it is necessary for the purpose of the establishment of the Queensland Family Responsibilities Commission under section 9 of the Family Responsibilities Commission Act 2008 (Qld) (FRC Act) 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 (FRC) which has been established by the 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 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 15A(1) is also subject to section 6 of this Determination which requires that any disclosure to a person can only occur where that person has sufficient interest in the information and the information cannot be obtained other than from Centrelink or the Department. A certificate issued under paragraph 355(1)(a) of the Act would also specify who the disclosure can be made to in a given circumstance.
Subsection 15A(2) provides that in section 15A, the Family Responsibilities Commission means the Commission established by section 9 of the Family Responsibilities Commission Act 2008 (Qld).
Section 15B provides that protected information can be released where this is done for the purposes of policy development or facilitating the progress or resolution of a matter i.e. a matter not already covered by paragraph 15B(a) that is relevant to any department administering the Student Assistance Act 1973, the social security law or the family assistance law. For example, protected information may be released under this section where the information is released for research purposes, including evaluation, monitoring and reporting, or statistical research in relation to any matter that is relevant to any department administering the Student Assistance Act 1973, the social security law or the 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 15B 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 15B is also subject to section 6 of the Guidelines which requires that any disclosure to a person can only occur where that person has sufficient interest in the information and the information cannot be obtained other than from Centrelink or the Department. A certificate under paragraph 355(1)(a) of the Act would also specify who specifically the disclosure can be made to in a given circumstance.
Consultation
This Determination amends the current Student Assistance (Public Interest Certificate Guidelines) Determination 2008 which applies to the disclosure of protected information under the Student Assistance Act 1973. The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) were consulted in making the changes to the Guidelines. FaHCSIA consulted the Office of the Federal Privacy Commissioner in relation to the proposed new section 15A (Family Responsibilities Commission) and section 15B (Matters of Relevance) of this Determination.
Regulatory Analysis
This Determination does 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 this Determination.