A prominent barrister believes the federal human services minister or one of his staff may have committed a crime by releasing a Centrelink client’s personal information.
Robert Richter QC was commissioned by the federal Labor party to provide advice on whether releasing the tax and relationship details of a recipient who was critical of Centrelink’s debt recovery scheme amounted to a criminal offence.
The disclosure relates to welfare recipient and blogger Andie Fox.
Ms Fox’s details were released by the office of Human Services Minister, Alan Tudge, after she publicly complained of being “terrorised” over an “incorrect” Centrelink debt attributed to her under the controversial automated debt-recovery system.
The Minister’s office released the information to a Fairfax journalist to “counter” her allegations.
Those details are regarded as “protected information” under the law. The unauthorised release of such information amounts to a criminal offence, which comes with a maximum penalty of two years’ imprisonment.
In Mr Richter’s view, it was “reasonably clear that either the minister or one of his office’s staff has committed an offence” by supplying the information to journalists.
“We cannot presently put it higher without knowing precisely the content of the information that was disclosed and by whom it was disclosed,” Mr Richter advised.
The barrister points out that countering an allegation is not a “permitted purposes” under the law.
“It seems clear that the disclosure of the information ‘to set the record straight’ is not a permitted purpose”, he remarked.
Mr Tudge has dismissed the barrister’s advice on the basis that the disclosure was cleared by his department’s chief lawyer.
Tudge has gone so far as to criticise Mr Richter impartiality and the reliability of his advice. “Labor’s lawyer provided an opinion without knowledge of what information was disclosed.” Tudge remarked, adding “I received clearance to release the information from the chief legal counsel of the Department of Human Services, who is intimately across the details of the case and the relevant laws.”
Exceptions to disclosure
The law contains a broad exception allowing for protected information to be released if authorised by the secretary of the Department of Human Services by way of a formal certificate.
However, this did not occur in Ms Fox’s case. Instead, the government seeks to rely on a provision which allows protected information to be released “for the purposes of the social security law”.
The government argues that the release of Fox’s personal information was necessary to maintain confidence in the social security system.
Statement by opposition
Labor human services spokeswoman, Linda Burney, has called Mr Richter’s advice “damning”.
“The prime minister needs to seriously consider whether Minister Tudge can remain in his position,” she stated. “If the minister had legal advice which authorised the release of the information, he should make it public,” she added.
“Rather than do anything to fix this problem, Minister Tudge recklessly leaked an individual’s private information in an effort to silence her. In doing so he may have broken the law. This is intimidating and a gross misuse of a powerful position.”
The matter is currently under investigation by the Australian Federal Police.
The Department of Human Services has vowed to continue releasing personal information to correct media statements made by welfare recipients about the debt recovery scheme.
“Unfounded allegations unnecessarily undermine confidence and take staff away from dealing with other claims,” a DHS spokesperson stated. “We will continue to correct the record on such occasions.”
That statement has been criticised by the government’s privacy watchdog, which is of the view that such disclosures may also breach the privacy undertakings of departments who share their data with the DHS.
Former NSW deputy privacy commissioner, Anna Johnston, says she expects Centrelink bureaucrats to be more cautious with personal information.
Sending a message
Peter Sutherland, a social security law expert at Australian National University, has called the disclosures “unprecedented”, while Burney has asked, “Was this just a vindictive campaign to silence his critics with a total disregard for privacy laws? How many other Centrelink clients have had their privacy breached because they dared criticise the Government?”