Querying the Government’s Authority to “Correct the Record”

By Darren O’Donovan

“We don’t comment on particular cases”.  Few lines are more ubiquitous in the public sphere. It is no surprise therefore, that the controversy regarding the disclosure of an individual’s personal information by the Department of Human Services has touched off enormous media comment and criticism. As reported yesterday, the Department authorised the release of an individual’s personal information – namely their interactions with Centrelink and the Australian Taxation Office to “correct the record” after they published an op-ed criticising Centrelink’s approach to issuing debt notices. In this post I want to provide a legal explainer of the powers of the department to disclose public information, and hopefully provide interested people with points to be put the Department for response.

Public interest Disclosures: Section 208 of the Social Security Administration Act 1999

Upon first hearing the story, my reaction was that the Department was using section 208 of the Social Security Administration Act 1999. This allows the disclosure of personal information:

“if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases–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 to such persons and for such purposes as the Secretary determine”

This quite broad discretion is, however, made subject to section 209, whereby the Minister can create guidelines regulating the disclosure of information with which the Secretary must comply.

The section 209 guidelines have been subject to multiple amendments and updates – this is a very refined and calibrated statutory scheme. The current version, the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 contains, in its section 10, a very carefully designed procedure for releasing “relevant” information to correct the facts. This requires that the disclosure, must be:

“necessary to correct a mistake of fact in relation to the administration of a program of the Department” and that either:

  • The integrity of the program will be at risk if the mistake of fact is not corrected or
  • The mistake of fact relates to a matter that was or will be published.

It is important to note the language here: a certificate is not a permission slip to engage in public relations combat – any disclosure must be anchored in correcting an identified mistake of fact. As a teacher of administrative law, I dislike the expression of correcting the public record (which features in the Department’s statement) precisely because it lead to a kind of bureaucratic drift. Utilising personal information to engage in a broad argument about the person’s overall experience would exceed the purpose of the disclosure. Even where a certificate exists, the Department’s intervention must be factual and limited to corrections. This fundamental restraint is supported by the fact that under section 11, a certificate may be created to authorise officials to brief the Minister in order to respond to a “mistaken perception or impression”.

The reader will note that I am not, on point of principle linking to the Fairfax media piece in question. A reasonable query is why – if the department was driven by a desire to correct Ms Fox’s initial piece – it did not seek direct amendment of that original piece by Fairfax. For those who have read the piece; the key questions for you are whether the Department’s communication of the personal information was targeted solely at correcting a factual mistake related to the administration of a program, and was itself accurate in all respects. The Australian public will be bewildered that, at a time when the accuracy of social security records has been under considerable criticism, the Department made the decision to place elements of an individual file on the public record.

Enter Section 202 of the Social Security Administration Act

It is at this point that statements from the Department completely muddied the waters – and shifted us away from section 208. The Department’s statement indicated that the information had been released under section 202 of the Social Security Administration Act 1999. These statements have generated confusion about the mechanics of the release, and the very first question journalists must be to ask is simply: was a Public Interest Certificate secured?

If the answer is no, the Department is trying to ground the release in section 202 which states:

“A person may obtain protected information if the information is obtained for the purposes of the social security law”

The Department’s statement appears to take a broad reading to the phrase “the purposes of social security law” to include two arguments for why releasing the personal information was needed to head off two dynamics:

  • The initial piece led to them having to answer questions – taking staff away from processing claims.
  • The initial piece which the departmental spokesperson quite aggressively termed “an unfounded claim” undermined public confidence in the system.

There are a number of issues with this approach to their power – and not just ethical ones based on the potential disproportion and factual contestability of these two links.

-The first argument is pretty common sense – Section 202 needs to be read harmoniously with the disclosure power under section 209. In short the existence of the section 208 mechanism with ministerial guidelines on factual corrections undermines the Department’s stretched s202 claims. An interpretation of section 202 which extends to preserving public confidence would threaten to deprive the 2015 Determination of effective use and practical meaning. Consider also the emphasis of section 4 of the Act which states that while the Secretary has power over “the general administration of the social security law”, this is subject to any direction of the Minister.

– Now turning to the key question of how to construe what might be a disclosure made “for the purposes of the social security law”. The Social Security Administration Act 1997 reads – to me at any rate – as making a textual distinction between the purposes of social security law, and the efficient administration of these legal norms. One way to counter the Department’s interpretation would be to argue that their interpretation is treating the section as if it permitted disclosure “for the purposes of administering the social security law”. Additionally, section 8 of Social Security Administration Act refers to “efficiency” as a principle of administration alongside other principles – it is not elevated to a direct legal duty upon the Department or a stand-alone purpose of social security law.

– The limiting phrase of “for the purposes of social security law” applies equally to the disclosure, recording and obtaining personal information, and needs to have a consistent meaning across each of these potential acts. A broad reading of the term “the purposes of social security law” would also expand the right of Department and Centrelink to obtain additional personal data. Is the Department claiming that it has the right to obtain personal information to correct the record or to preserve public confidence? What is the logical limit to such powers? In essence if the department is claiming the right to disclose information to preserve public confidence in the system, it would have the same entitlement to obtain information to preserve confidence in the system. Indeed section 202 permits not just disclosure, recording or obtaining, it permits the individual to “otherwise use” personal information. It just does not seem to reflect statutory privacy protections existing across Australian law or the heading of the section itself, namely “the protection of personal information” to interpret the section as giving the Department enjoys full use of an individual’s personal information for the preserving of personal confidence or the avoidance of small scale staff resource diversion.

– If you look at the sequencing of section 202 it supports the idea that its fundamental intention is to permit the internal governmental dissemination of information to administer programmes and perform defined statutory duties at officer level. It authorises side by side, in direct sequence, the obtaining, disclosure and recording of personal information – inferring that the fundamental intention is to allow administrators to flow information into their decisions, not to provide a discrete authorisation for the publication to the entire Australian community of individual’s personal interactions. Section 202, understood in its proper context, is not a general, public-facing provision.

Protecting Rights in Australia

I’m not sure if many readers will have slogged through the above points, but they give you a sample of the everyday, garage work of attempting to read government’s powers down. The department may have responses to the above points e.g. that efficient administration is a purpose of social security law but it is vital to demand these in public fora given the potential implications of a broad interpretation of these powers.  Recent events from the census to robo-debt scandal underline the importance of law as a fundamental language in government, returning bureaucracy to clear authorisation and a process of justification can be a powerful counter to a political climate driven by public relations, policy combat and media cycles.

La Trobe