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

28 February 2017
Darren O’Donovan
Law and Justice: Latrobe Law School Blog

“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.

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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.

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.

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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.

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:

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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.

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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.