Federal Register of Legislation - Australian Government

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Determinations/Other as made
The purpose of the Determination is to 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.
Administered by: Education, Employment and Workplace Relations
Made 29 Apr 2008
Registered 29 Apr 2008
Tabled HR 13 May 2008
Tabled Senate 13 May 2008
Date of repeal 22 Jan 2011
Repealed by Student Assistance (Public Interest Certificate Guidelines) Determination 2011
This Legislative Instrument has been subject to a Motion to Disallow:
Motion Date:
02-Sep-2008
Expiry Date:
10-Nov-2008
House:
Senate
Details:
Full
Resolution:
Withdrawn
Resolution Date:
22-Sep-2008
Resolution Time:
Provisions:

I, JULIA EILEEN GILLARD, Minister for Education make this Determination under paragraph 356(1)(a) of the Student Assistance Act 1973.

Dated            29    April  2008

Julia Gillard


Part 1      Preliminary

  

1              Name of Determination

                This Determination is the Student Assistance (Public Interest Certificate Guidelines) Determination 2008.

2              Commencement

                This Determination commences on the day after it is registered.

3              Purpose

                The purpose of this Determination is to set out guidelines for the exercise of the Secretary’s power to give certificates for the purposes of paragraph 355(1)(a) of the Act.

4              Definitions

                In this Determination:

Act means the Student Assistance Act 1973.

Centrelink means the Agency established under section 6 of the Commonwealth Services Delivery Agency Act 1997.

Chief Executive Officer of Medicare Australia means the Chief Executive Officer appointed under section 8AG of the Medicare Australia Act 1973.

Department means the Department of Education, Employment and Workplace Relations.

family member has the same meaning as subsection 23(14) of the Social Security Act 1991.

Minister means:

                (a)    a Minister of State administering any part of:

                          (i)    the Act; or

                         (ii)    the Commonwealth Services Delivery Agency Act 1997; or

               (b)    the Prime Minister.

public interest certificate means a certificate, under paragraph 355(1)(a) of the Act, for the disclosure of relevant information.

relevant information means information about a person (including protected 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 Student Assistance Act 1973.

Note 1   The following expressions are defined in the Act and have the same meaning in the Act

·      officer

·      protected information

·      Secretary

·      student assistance benefit.

5              Matters to which Secretary must have regard

                In giving a public interest certificate, the Secretary must have regard to:

                (a)    any situation in which the person to whom the information relates is, or may be, subject to physical, psychological or emotional abuse; and

               (b)    whether the person in such a situation may be unable to give notice of his or her circumstances because of:

                          (i)    age; or

                         (ii)    disability; or

                         (iii)    social, cultural, family or other reasons.

 


Part 2      Guidelines — public interest certificate (general)

  

6              When public interest certificate may be given

         (1)   The Secretary may give a public interest certificate for the disclosure of relevant information under this Part if:

                (a)    the information cannot reasonably be obtained from a source other than the Department or Centrelink; and

               (b)    the person to whom the information will be disclosed has sufficient interest in the information; and

                (c)    the Secretary is satisfied that the disclosure is for the purpose of section 7,8, 9, 10, 11, 13 ,14, 15 or subsection 12 (1) or (2) of this Determination.

         (2)   A person has sufficient interest in the relevant information if:

                (a)    the Secretary is satisfied that, in relation to the purpose of the disclosure, the person has a genuine and legitimate interest in the information; or

               (b)    the person is a Minister.

7              Threat to life, health or welfare

                Relevant information may be disclosed for the purpose of this section if the disclosure is necessary to prevent, or lessen, a threat to the life, health or welfare of a person.

8              Enforcement of laws

         (1)   Relevant information may be disclosed for the purpose of this section if:

                (a)    the disclosure is necessary:

                          (i)    for the enforcement of a criminal law that relates to an indictable offence punishable by imprisonment of 2 years or more; or

                         (ii)    for the enforcement of a law imposing a pecuniary penalty equivalent to 40 penalty units or more; or

                         (iii)    to prevent an act that may have a significant adverse effect on the public revenue; or

               (b)    the disclosure relates to an offence or threatened offence:

                          (i)    against a Commonwealth employee; or

                         (ii)    against Commonwealth property; or

                         (iii)    in Department premises; or

                        (iv)    in Centrelink premises.

         (2)   In this section:

criminal law means:

                (a)    for Australia — a criminal law of the Commonwealth or of a State or Territory; and

               (b)    for a place outside Australia — a criminal law that may be recognised under an extradition arrangement to which Australia is a party.

penalty unit has the same meaning as in section 4AA of the Crimes Act 1914.

Note   Subsection 4AA (1) of the Crimes Act 1914 provides:

‘In a law of the Commonwealth or a Territory Ordinance, unless the contrary intention appears:

penalty unit means $110.’.

9              Mistake of fact

                Relevant information may be disclosed for the purpose of this section if:

                (a)    the disclosure is necessary to correct a mistake of fact in relation to the administration of a program of the Department; and

               (b)    either:

                          (i)    the integrity of the program will be at risk if the mistake of fact is not corrected; or

                         (ii)    the mistake of fact relates to a matter that was, or will be, published (whether by, or with or without the consent of, the person to whom the information relates).

10            Ministerial briefing

                Relevant information may be disclosed for the purpose of this section if the disclosure is necessary:

                (a)    to brief a Minister so that the Minister can consider complaints or issues raised by or on behalf of a person with the Minister (in writing or orally), and respond to that person in relation to the complaints or issues; or

               (b)    to brief a Minister for a meeting or forum that the Minister is to attend; or

                (c)    to brief a Minister in relation to issues raised or proposed to be raised publicly by or on behalf of the person to whom the relevant information relates 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; or

               (d)    to brief a Minister about an error or delay in the part of Centrelink; or

                (e)    to brief a Minister about an instance of an anomalous or unusual operation of the Student Assistance Act 1973.


11            Missing person

                Relevant information may be disclosed for the purpose of this section if:

                (a)    the information is about a missing person; and

               (b)    the disclosure is necessary:

                          (i)    to assist a court, coronial enquiry, Royal Commission, department or any other authority of a State or Territory in relation to the whereabouts of the missing person; or

                         (ii)    to locate a person (including the missing person); and

                (c)    there is no reasonable ground to believe that the missing person would not want the information disclosed.

12            Deceased person

         (1)   Relevant information may be disclosed for the purpose of this subsection if:

                (a)    the information is about a deceased person; and

               (b)    the disclosure:

                          (i)    is necessary to assist a court, coronial enquiry, Royal Commission, department, or any other authority of a State or Territory in relation to the death of the person; or

                         (ii)    is necessary to help a person locate a relative or beneficiary of the deceased person; or

                         (iii)    is in relation to the administration of the estate of the deceased person; or

                       (iv)    is in relation to Centrelink transferring information regarding the deceased person who, prior to their death, was qualified for, or was receiving an Australian age pension, to the authority responsible for administering the social security system in the United Kingdom; and

                (c)    there is no reasonable ground to believe that the deceased person would not have wanted the relevant information disclosed.

         (2)   Relevant information may be disclosed for the purpose of this subsection if the information is to establish:

                (a)    the death of a person; or

               (b)    the place where the death of a person is registered.

 

13            School enrolment and attendance

                Relevant information may be disclosed for the purpose of this section if the disclosure is necessary to ensure a child who:

(a)        is required to be enrolled in a school under a law of a State or Territory is enrolled; or

(b)       is required to be attending a school under a law of a State or Territory is attending.

                   

14            School infrastructure

                Relevant information may be disclosed for the purpose of this section if the disclosure is necessary to plan for, meet or monitor infrastructure and resource needs in one or more schools.

15            Dental Schemes

(1) Subject to subsection 2, relevant information may be disclosed for the purposes of this section if the disclosure is necessary to assist in the development of, or to determine eligibility for, a dental program or scheme or a proposed dental program or scheme, to be administered by either or both:

(a)        the Commonwealth Department of Health and Ageing;             

(b)       the Chief Executive Officer of Medicare Australia.

 

(2) This section ceases to have effect on the day after both the Dental Benefits Act 2008 and the Dental Benefits (Consequential Amendments) Act 2008 have received the Royal Assent.

                       


 

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

  

16            Application

         (1)   This Part applies if the relevant information for disclosure relates to a homeless young person.

         (2)   In this Part:

homeless young person means a person:

                (a)    who is under 18 years; and

               (b)    who has sought a student assistance benefit on the ground of being a homeless person.

parent, in relation to a homeless young person, means:

                (a)    a natural or adoptive parent of the homeless young person with whom the homeless young person normally lived before becoming a homeless young person; or

               (b)    if a parent referred to in paragraph (a) is a member of a couple and normally lives with the other member of the couple — the other member of the couple; or

                (c)    any other person (other than the homeless young person’s partner) on whom the homeless young person was wholly or substantially dependent before becoming a homeless young person.

17            When public interest certificate may be given

         (1)   The Secretary may give a public interest certificate for the disclosure of relevant information under this Part if:

                (a)    the information cannot reasonably be obtained from a source other than the Department or Centrelink; and

               (b)    the Secretary is satisfied that the disclosure will not result in harm to the homeless young person; and

                (c)    the Secretary is satisfied that the disclosure is for the purpose of section , 18, 19, 20 or 21.

         (2)   The Secretary may also give a public interest certificate for the disclosure of relevant information under this Part if:

                (a)    the information cannot reasonably be obtained from a source other than the Department or Centrelink; and

               (b)    the disclosure will be made to a welfare authority of a State or Territory; and

                (c)    the homeless young person to whom the relevant information relates is:

                          (i)    in the care of a welfare authority of a State or Territory in accordance with the law of the State or Territory; or

                         (ii)    under 15 years; and

               (d)    the Secretary is satisfied that the disclosure will not result in harm to the homeless young person.

18            Abuse or violence

                Relevant information may be disclosed to an appropriate authority for the purpose of this section if:

                (a)    the information is about a family member of a homeless young person; and

               (b)    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.

19            Verification for payment

                Relevant information may be disclosed for the purpose of this section if:

                (a)    the disclosure is necessary to verify a circumstance by which a homeless young person who is under 15 years may qualify for a student assistance benefit on the ground of being a homeless person; and

               (b)    in order to verify the circumstance, a parent, or the parents, of the 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.

Note   Student assistance benefits, appropriated for the purpose, are made by Centrelink on behalf of the Department under service arrangements entered into under section 7 of the Commonwealth Services Delivery Agency Act 1997.

20            Reconciliation

                Relevant information may be disclosed for the purpose of this section if the disclosure will facilitate reconciliation, or possible reconciliation, between a homeless young person and his or her parent or parents.

21            Assurance

                Relevant information may be disclosed for the purpose of this section if:

                (a)    a parent, or the parents, of a homeless young person has sought assurance that the homeless young person has been in contact with the Department or with Centrelink; and

               (b)    the disclosure is necessary to inform the parent or parents whether the homeless young person has been in contact with the Department or with Centrelink.