Student Assistance (Public Interest Certificate Guidelines) Determination 2015

EXPLANATORY STATEMENT

Student Assistance (Public Interest Certificate Guidelines) Determination 2015

Summary

The Student Assistance (Public Interest Certificate Guidelines) Determination 2015 (the Guidelines) are made under paragraph 356(a) of the Student Assistance Act 1973 (the Act).

The purpose of the Guidelines is to assist the Secretary (or the delegate) of the Department of Social Services (DSS) in the exercise of their power under paragraph 355(1)(a) to disclose protected information where it is necessary in the public interest.

The disclosure of relevant 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 this disclosure is for the purpose for which the information was disclosed to the person, as permitted by paragraph 351(2)(e) of the Act, or the disclosure is otherwise authorised under law.

The Guidelines are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Changes to the 2013 Guidelines

The Guidelines largely replicate the Student Assistance (Public Interest Certificate Guidelines) Determination 2013 (the 2013 Guidelines) subject to certain changes set out below.

The Guidelines revoke the 2013 Guidelines.

Despite this revocation, there is a savings provision (section 3A), to put beyond doubt that public interest certificates made under and in accordance with the 2013 Guidelines continue in force. 

The Guidelines add section 9A.  The purpose of this new section is to ensure that protected information can be disclosed to assist Commonwealth, State and Territory law enforcement agencies with:

(a) the making, or proposed or possible making, of a proceeds of crime order; or

(b) supporting or enforcing a proceeds of crime order.

Subsection 9A(2) defines ‘proceeds of crime order’ for the purposes of section 9A.

The Guidelines also add paragraph 15(d). Paragraph 15(d) states that information may be disclosed for the purposes of investigating or taking enforcement action in relation to public housing or State or Territory managed housing including to assist with an investigation into either:

 (i)    the misreporting of income by tenants of public housing or State or Territory managed housing; or

(ii)   the unauthorised occupation of public housing or State or Territory managed housing by any person.               

The Guidelines also provide further clarity (in section 19) on what is meant by a ‘matter of relevance’ for the purposes of the Guidelines. Subsection 19(2) provides that a matter of relevance to a department includes a programme or activity that provides assistance or services to a class of people that includes at least some persons receiving payments or entitlements under the social security law or the family assistance law.

A detailed description of the 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), saving of certificates made under the former instrument (section 3A), purpose (section 4), definitions (section 5) and matters to which the Secretary of DSS must have regard (section 6).

Section 6 provides that the Secretary must have regard to certain matters 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. The Secretary must also have regard to whether the person in such a situation 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 ensure that these matters are taken into account in giving a public interest certificate, such as where relevant information may be disclosed in relation to situations involving individuals who may not be in a position to seek assistance themselves.

Part 2 – Guidelines – public interest certificate (general)

Part 2 sets out how the disclosure of relevant information can generally occur under paragraph 355(1)(a) of the Act.

Subsection 7(1) provides that a public interest certificate may be given by the Secretary if:

• the information cannot reasonably be obtained from another source other than a Department; and
• the disclosure will be to a person who has sufficient interest in the information; and
• the Secretary is satisfied that disclosure is for at least one purpose mentioned in a provision in Part 2.

This provision applies in all circumstances mentioned in Part 2.

Subsection 7(2) provides that a person has sufficient interest in the relevant information if either the Secretary is satisfied that the person has a genuine and legitimate interest in the information or the person is a Minister.

Section 8 permits disclosure of relevant information where necessary to prevent, or lessen, a threat to the life, health or welfare of a person.

Paragraph 9(1)(a) permits disclosure of relevant information if the disclosure is necessary:

• for the enforcement of a criminal law that relates 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.

Paragraph 9(1)(b) permits disclosure of relevant information where the disclosure relates to an offence, or threatened offence, against a Commonwealth employee, against Commonwealth property, or in premises of a Department (including DSS and the Department of Human Services (DHS)). In subparagraph 9(1)(b)(i) the word ‘employee’ has been inserted to correct a technical omission.  

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

A note at the end of section 9 quotes subsection 4AA(1) of the Crimes Act 1914.

Paragraph 9A(1) is a new provision. This provision permits the disclosure of relevant information to a Commonwealth, State or Territory law enforcement agency if the disclosure is necessary for:

• the making, or proposed or possible making, of a proceeds of crime order; or
• supporting or enforcing a proceeds of crime order.

Paragraph 9A(2) defines the term ‘proceeds of crime order’.

Section 9A of these Guidelines is aimed at disrupting and combating serious and organised crime. The measure does this by assisting law enforcement agencies in their efforts to deprive individuals of the proceeds, instruments and benefits derived from unlawful activity.

Where a proceeds of crime order has been made or is being sought against an individual under a Commonwealth, State or Territory law, section 9A will ensure that law enforcement bodies and other relevant entities have access to the information they need to make, support or enforce the order.

Section 9A has been drafted based on section 355-70 in Schedule 1 to the Taxation Administration Act 1953. Section 9A has been drafted consistently with the provisions in that Act relating to the disclosure of protected tax information for proceeds of crime purposes.

Section 10 permits disclosure of relevant information where necessary to correct a mistake of fact in relation to the administration of a program of a 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 relevant information if the disclosure is necessary to brief a Minister (as defined in section 5):

• to enable the Minister to consider complaints or issues raised by, or on behalf of a person, and respond to that person accordingly;
• for a meeting or forum that the Minister is to attend;
• 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, or a misleading statement;
• about an error or delay by a Department (including DSS and DHS); or
• about an anomalous or unusual operation of the Act, social security law, or family assistance law.

Section 12 permits disclosure of relevant information about a person who is, or has been reported to be, missing or deceased, in certain circumstances. First, the Secretary needs to be satisfied that there is no reasonable ground to believe that the person (including were they alive) would not want the information disclosed. Second, the disclosure has to be necessary for one of the following purposes:

• to locate a person (including the missing or deceased person him- or herself, or that person’s relatives or beneficiaries);
• to assist a court, coronial inquiry, Royal Commission, department or any other authority of a State or Territory, or authority responsible for administering the social security system in another country in relation to inquiries being undertaken by that organisation or authority; or
• where the relevant information relates to a deceased person – to assist the person responsible for the deceased person’s estate in relation to the administration of that estate.

Section 13 permits disclosure of relevant information where it is necessary to ensure a child who should be enrolled in, or attending, school, is enrolled or attending.

In administering Part 3B of the Social Security (Administration) Act 1999, DHS may collect information from parents or schools regarding the enrolment or attendance of children at school. However, State and Territory education departments and schools may not necessarily have certain information on their own records. For example, they may not be aware of children who are not enrolled at school.  Section 13 will facilitate the release of information 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. Section 13 is intended to ensure that relevant information held by the Commonwealth is provided to relevant State/Territory authorities and schools so that action can be taken to facilitate enrolment and improve attendance in accordance with State/Territory laws.

Section 14 permits the disclosure of relevant information where it is necessary to plan for, meet or monitor infrastructure and resource needs in one or more schools.

Section 15 deals with disclosures that are permitted in relation to the administration of public housing.

This provision authorises the disclosure of income details about people in public housing from DHS to bodies such as State Housing Authorities (SHAs) to allow for the accurate calculation of rents.  The provision also ensures that relevant information can be disclosed to agents or contracted service providers of State/Territory departments or authorities to deal with different organisational arrangements in States and Territories for the administration of public housing.  This provision authorises the disclosure of information from DHS to bodies such as SHAs in the context of the administration of an income confirmation service (such as the Automatic Income Confirmation Service).  The disclosure of information under this provision provides administrative efficiency for government agencies and those in public housing who need to have their rents determined according to their household income.

Paragraph 15(d) has been added to the Guidelines to clarify that information can be disclosed for the purposes of investigating or taking enforcement action in relation to public housing or State or Territory managed housing including to assist with an investigation into either:

• the misreporting of income by tenants of public housing or State or Territory managed housing; or
• the unauthorised occupation of public housing or State or Territory managed housing by any person.

The intention of this change is to further support existing income confirmation services and provide a clear basis for the Department to disclose information where it is necessary to investigate fraudulent activity and the misuse of public housing.

Subsection 16(1) provides for relevant information to be disclosed where it is necessary for the establishment of the Queensland Family Responsibilities Commission (FRC) or to assist in the performance of its functions or the exercise of its powers. Among other things, relevant information can be disclosed under subsection 16(1) to support decision-making by the FRC. This would include enabling the FRC to correctly identify persons who are within its jurisdiction.

Subsection 16(2) provides that the Family Responsibilities Commission means the Commission established by section 9 of the Family Responsibilities Commission Act 2008 (Qld).

Section 17 permits the disclosure of relevant information where the information will be used by a State, Territory or the Commonwealth government for the purpose of contacting someone in respect of their possible entitlement to compensation or other forms of recompense in a reparation process.

Section 18 allows for the disclosure of relevant information to a State or Territory child protection agency if the disclosure is necessary for the purpose of contacting a child’s parent or relative. For example, section 18 may apply when a child protection agency is seeking to contact a parent to assist in a court case relating to the child.

Section 18C permits the disclosure of relevant information about a person’s social security concessions where responsibility for the provision of services to them has been transferred from one public utility to another. The purpose of this provision is to facilitate improved customer service for Commonwealth concession card holders who receive a concessional rate on their utilities bill.

Section 18C will apply in relation to the disclosure of information about the customers of a public utility. The term “public utility” is defined in subsection 18C(2) to mean a legal entity that provides, or is related to a legal entity that provides, water, sewerage, gas, electricity or telecommunications services to the public.

Section 18C applies where the customer of a public utility has provided consent to enable that public utility to confirm their entitlement to a social security related concession. This confirmation is provided through the Centrelink Confirmation eServices (CCeS), administered by DHS. Where responsibility for the provision of services to that customer has been transferred to another public utility and, where necessary, the second public utility advises the Commonwealth of the customer’s contact details, relevant information may be disclosed to the second public utility to enable it to confirm the customer’s entitlement to a social security related concession through the CCeS. This is intended to cover a range of situations where responsibility for the provision of services to customers has been transferred. This may arise through changes in the ownership of public utilities (eg as the result of merger or acquisition). It may also arise, for example, where a public utility enters in to an arrangement for another public utility to take over responsibility for some or all of its customers.  

Subsection 19(1) provides that relevant information may be disclosed for the purpose of this section if the disclosure is necessary for the purpose of facilitating the progress or resolution of matters of relevance within the portfolio responsibilities of a department that is administering any part of the family assistance law or the social security law.

Subsection 19(2) provides that ‘a matter of relevance’ to a department includes a programme or activity that provides assistance or services to a class of people that includes at least some persons receiving student assistance benefits or payments or entitlements under the social security law or the family assistance law.

DSS also administers programmes and schemes that deliver additional support and assistance to people who may or may not be in receipt of student assistance benefits, or social security or family assistance payments or entitlements.  This additional support does not necessarily fall within the student assistance law, social security law or family assistance law.  Section 19 enables the disclosure of relevant information where it is necessary to facilitate or progress a Departmental programme or scheme that is designed to deliver services to support and assist a class of people wholly or partly comprised of student assistance, social security or family assistance recipients, whether or not that program or scheme falls within the student assistance law, social security law or family assistance law.

This section enables a delegate to disclose information where the disclosure is not already authorised by section 351 of the Act, or by another section in these Guidelines.

Part 3 – Guidelines – public interest certificate (homeless young person)

Part 3 sets out how the release of relevant information can occur under paragraph 355(1)(a) of the Act in relation to homeless young people.

Section 20 provides that this Part applies if relevant information relates to a homeless young person. It also provides definitions of the terms ‘homeless young person’ and ‘parent’ for the purposes of Part 3.

Subsection 21(1) provides that a public interest certificate may be given by the Secretary if:

• the information cannot be obtained from a source other than a Department;
• 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 at least one purpose mentioned in a provision in Part 3.

Subsection 21(2) provides that a public interest certificate may also be given by the Secretary if:

• the information cannot be obtained from another source other than a Department;
• the disclosure will be made 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 the information is disclosed.

Section 22 permits disclosure of relevant information 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 23 permits disclosure of information where necessary to verify a circumstance by which a homeless young person under the age of 15 years may qualify for a social security payment on the ground of being a homeless person. Information may also be disclosed if, in order to verify the circumstance, 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/s.

Section 24 permits disclosure of information to facilitate reconciliation, or possible reconciliation, between a homeless young person and his or her parent/s.

Section 25 permits disclosure of information where necessary to inform the parent or parents of a homeless young person whether that person has been in contact with DSS or DHS. This section will only apply where the parent or parents have sought such an assurance.

Consultation

DHS and the Attorney-General’s Department were consulted in the development of these Guidelines.

Regulatory Analysis

These Guidelines do not require a Regulatory Impact Statement. The Guidelines are not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Student Assistance (Public Interest Certificate Guidelines) Determination 2015

The Student Assistance (Public interest Certificate Guidelines) Determination 2015 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Student Assistance (Public Interest Certificate Guidelines) Determination 2015 (the Guidelines) is made under paragraph 356(a) of the Student Assistance Act 1973 (the Act). The purpose of the Guidelines is to assist the Secretary (or a delegate) of the Department of Social Services (DSS) in the exercise of their power under paragraph 355(1)(a) of the Act to disclose protected information where it is necessary in the public interest.

The student assistance system involves the collection, use, storage and disclosure of significant amounts of information, much of which is of a personal nature. Part 10 of the Act provides a legal framework to ensure that a high level of protection is accorded to such information. Personal information handled under the student assistance system is also protected by the Privacy Act 1988.

Part 10 of the Act contains comprehensive provisions relating to the management of personal information, including provisions relating to the disclosure of such information. Among these provisions, paragraph 355(1)(a) provides that the Secretary (or the delegate) can disclose information acquired by an officer under the Act if he or she certifies that it is necessary in the public interest to do so in a particular case or class of cases. A certificate under this provision must specify the persons to whom, and the purposes for which, the information is provided. Under paragraph 356(a) of the Act, the Minister has the power to make guidelines for the exercise of the Secretary’s power in paragraph 355(1)(a) of the Act.

Prior to the Guidelines, the former Minister for Employment and Minister for Skills and Training  exercised the guideline-making power in paragraph 355(1)(a) of the Act by making the Student Assistance (Public Interest Certificate Guidelines) Determination 2013 (the 2013 Guidelines). The 2013 Guidelines provided guidelines relating to the disclosure of information in the public interest in a number of precisely-defined situations, and subject to a number of conditions (including that the information cannot reasonably be obtained from other sources and the person receiving the information has a sufficient interest in it).

The Guidelines retain the content of the 2013 Guidelines (which is revoked).

The Guidelines also include two new public interest grounds in section 9A and paragraph 15(d). These two grounds are discussed in turn.

New section 9A of the Guidelines states that information may be disclosed to a Commonwealth, State or Territory law enforcement agency if the disclosure is necessary for the making, or proposed or possible making, of a proceeds of crime order or supporting or enforcing a proceeds of crime order.

New paragraph 15(d) clarifies that protected information can be disclosed where the disclosure is necessary to investigate or take enforcement action in relation to public housing or State or Territory managed housing including to assist with an investigation into either:

(i)    the misreporting of income by tenants of public housing or State or Territory managed housing; or

(ii)   the unauthorised occupation of public housing or State or Territory managed housing by any person.             

Disclosure of protected information is subject to the condition that information can only be disclosed if it cannot reasonably be obtained from a source other than a Department (which includes DSS and the Department of Human Services (DHS)), and that the person to whom the information will be disclosed has a “sufficient interest” in the information (see section 7 of the Guidelines).  The term “sufficient interest” is met if the Secretary is satisfied that the person to whom the information will be disclosed has a genuine and legitimate interest in the information, or the person is a Minister (see subsection 7(2) of the Guidelines).

Human rights implications

Interference with privacy

The Guidelines engage the prohibition on interference with privacy, which impacts on changes to Commonwealth secrecy provisions relating to personal information. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) prohibits unlawful or arbitrary interferences with a person’s privacy. It also provides that persons have a right to the protection of the law against such interference. 

The use of the term “arbitrary” in Article 17 means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in all the circumstances. It is recognised that limitations may be imposed on the general prohibition on interference with privacy, provided that such limitations are reasonable, necessary and proportionate.

Section 9A – proceeds of crime orders

The new measure in section 9A of these Guidelines is reasonable, necessary and proportionate. The measure is reasonable in that it addresses a particular situation where a public benefit will flow from the disclosure of the information.

To the extent that the new measure affects the right to privacy, such limitation is aimed at disrupting and combating serious and organised crime. The measure does this by assisting law enforcement agencies in their efforts to deprive individuals of the proceeds, instruments and benefits derived from unlawful activity.

This new measure is necessary to achieve, and is reasonable in achieving, the aim of disrupting criminal activity and combating serious and organised crime.

The amendments are consistent with the right to privacy because the records or disclosures will be authorised by law and not arbitrary. The amendments provide a reasonable, necessary and proportionate means of achieving the legitimate objective of confiscating financial benefits gained through criminal activities.

Where a proceeds of crime order has been made or is being sought against an individual under a Commonwealth, state or territory law, section 9A will ensure that law enforcement bodies and other relevant entities have access to the information they need to make, support or enforce the order.

Section 9A has been drafted based on section 355-70 in Schedule 1 of the Taxation Administration Act 1953. Section 9A has been drafted consistently with the provisions in that Act relating to the disclosure of protected tax information for proceeds of crime purposes.

Paragraph 15(d) - public housing administration

The new measure in paragraph 15(d) of these Guidelines is reasonable, necessary and proportionate to the right to privacy.

To the extent that this new measure affects the right to privacy, such limitation is aimed at assisting public housing authorities with undertaking investigations or enforcement action in relation to public housing, including the misreporting of income and the unauthorised occupation of public housing.

The disclosure of protected information under paragraph 15(d) will assist the relevant public housing authorities to achieve a fairer and more equitable public housing system where public resources are directed to those who are most in need of assistance.

As well as engaging the right to privacy, the new measure in paragraph 15(d) of the Guidelines engages the right to social security as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

The new measure in paragraph 15(d) of the Guidelines promotes the right to social security. This measure promotes this right by enabling disclosures of information to assist public housing authorities to fairly and equitably distribute public housing assistance.

Safeguards concerning the disclosure of protected information

There are a number of safeguards in place in relation to the disclosure of information under the new measures, many of which apply (and have applied over time) in relation to public interest disclosures under other provisions in the Guidelines.  These include the following:

• As noted above, while the Privacy Act 1988 continues to apply in relation to the management of social security information, the social security law imposes a higher level of protection to such information than is imposed under the Privacy Act 1988.  For example, criminal sanctions apply for the unauthorised use or disclosure of information under the Student Assistance Act 1973 (see section 353 of the Student Assistance Act 1973);

• Where protected information covered by these Guidelines is not ‘personal information’ under the Privacy Act 1988 (because an individual’s identity is unable to be determined from that information), the relevant individual’s privacy would not be compromised;

• Public interest certificates made on the basis of these Guidelines are made by experienced Commonwealth officers (usually in DHS) at appropriate levels, and are subject to administrative arrangements which recognise the significance of such decisions;

• Public interest certificates can only be made when doing so is in the public interest;

• In appropriate circumstances, the disclosure of information under the Guidelines may be accompanied by additional measures to further protect the information (e.g. Deeds of confidentiality may be required for recipients of the information and Memoranda of Understanding may be entered into with research institutions); and

• The social security law provides that information provided to a person on the basis of a public interest certificate must be used for the purpose for which it was provided.  It is not possible for that recipient to disclose the information to other parties unless the disclosure is for the same purpose or the disclosure is otherwise authorised by law.   

In relation to new section 9A it should also be noted that the Privacy Act 1988 currently provides Commonwealth agencies with the ability to use or disclose ‘personal information’ where the agency reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body (see Australian Privacy Principle 6.2(e) in Schedule 1 to the Privacy Act 1988).

While Australian Privacy Principle 6.2(e) does not authorise the disclosure of ‘protected information’, it demonstrates a general acceptance in the law that Commonwealth agencies should be able to provide information to law enforcement agencies to assist with their enforcement activities (including proceeds of crime and unexplained wealth investigations).

Concluding remarks

The Guidelines are compatible with human rights. To the extent that the right to privacy is limited, those limitations are reasonable, necessary and proportionate, and appropriate safeguards are in place.

Conclusion

The Guidelines are compatible with human rights.