This article is more than 3 years old

This article is more than 3 years old

Australia’s human services minister, Alan Tudge, relied on legal guidelines in parliament to justify the release of personal information to the media that his own department now says are irrelevant.

Tudge was criticised in parliament on Tuesday for releasing the personal details of welfare recipient Andie Fox, who was critical of Centrelink’s handling of her debt. Lawyers and welfare groups have already warned that the decision to release Fox’s details was legally debatable.

Tudge sought to justify the release of Fox’s details by relying on a part of social security law that he said allows personal information to be disclosed to correct the public record.

Centrelink fiasco: when can the government release your personal information? Read more

But the powers he claims were used directly contradict his own department’s comments and only relate to disclosing information by the secretary to the minister.

Labor’s Linda Burney said Tudge’s justification for the release of Fox’s details was “confused at best” and said that the controversial decision would be pursued again during Senate estimates on Thursday.

“The minister is arguing that his actions were legal; the fact is they certainly weren’t ethical,” she said. “Yesterday I moved to suspend the parliament so that Mr Tudge could explain himself. Now it looks like his explanation to the house was confused at best. Mr Tudge has to come clean.”

Tudge told parliament on Tuesday that he and the agency he oversees were entitled to release Fox’s information.

“We are able under the Social Services Act to release information about the person for the purposes of, as I quote, ‘correcting a mistake of fact, a misleading perception or impression or a misleading statement in relation to a welfare recipient’,” he said.

“That is what the law allows. It allows the correction of false information which has been placed in the media. Now in relation to Andie Fox there was false information that was placed into the media, which she herself penned. And so information was provided to correct the record in relation to those allegations.”

But Tudge was mistakenly quoting from legal guidelines that are only relevant if the Department of Human Services secretary formally authorises the release of personal information by issuing a public interest certificate. This would have required the secretary to take into account a range of factors and provide a written authorisation before releasing Fox’s information.

Tudge’s own department has already said it did not issue such a certificate and released the information under another law. “They do not need to be formally authorised by the secretary,” a spokeswoman said on Monday.

The section of the guidelines Tudge was quoting from also only authorised the release of personal information from the secretary directly to the minister; not the public or media.

That section of the guidelines states: “Relevant information may be disclosed for the purpose of this section if the disclosure is necessary ... 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, or a misleading statement”.

Release of Centrelink recipient's data legally 'debatable', say welfare advocates Read more

After Guardian Australia put questions to the minister about his comments in parliament, a departmental spokesman said: “The disclosure in relation to Ms Fox did not need to be made under a public interest certificate (PIC) and the PIC guidelines are not relevant. This is because the disclosure was for the purposes of the relevant law.”

The release of Fox’s personal information has dominated debate in parliament while agencies have fronted up to given evidence at Senate estimates.

Australia’s information and privacy commissioner, Timothy Pilgrim, told the Senate on Tuesday that his office had made preliminary inquiries of Centrelink about whether it had the legal authority to release the information.

“Having seen a report that there were some concerns about how potentially sensitive information had been released, I thought it was necessary for us to make some inquiries to assess what powers Centrelink was using to release the personal information of an individual into the public arena,” Pilgrim said.

“We’re making general inquiries. I would stress that this is not a formal investigation at this time but making inquiries to ascertain to release that information.”

Legal experts have expressed surprise at the decision to release Fox’s information, describing it as against past practice.

Legal Aid Victoria has also raised serious concern about the release, and said there were real doubts about the way the law had been interpreted.

It has begun advising individuals that speaking out about their Centrelink debts means their personal details may be released.

Civil justice executive director, Dan Nicholson, described it as an “unsatisfactory” situation. Nicholson called for the department to set out exactly what powers it had used to release the information.

He said the disclosure of protected information was typically considered criminal, and could be punished by up to two years imprisonment.

“In this case the government relies on an exception to the offence that allows disclosures because they are ‘for the purposes of social security law’ – specifically because, they claim, ‘unfounded allegations necessarily undermine confidence and takes staff effort away from the dealing with other claims’,” Nicholson said.

“This is an extraordinarily broad interpretation of this exception. We can’t find any decided cases that support it, and we think there are real doubts about this interpretation of the law,” he said.

“It seems that Centrelink is attempting to get around important safeguards in the Act by releasing the information in the way they have.”

Australian National University academic and social security lawyer, Peter Sutherland, said the disclosure was unusual, and said its legality could only be properly tested in court.



“This is an unusual extension of past practice in the field,” Sutherland told Guardian Australia.

“It may or may not be authorised by the section 202 of the social security (administration) act and s162 of the family assistance act,” he said.

“But really that’s a matter for the courts to decide, it’s not an open and shut case.”

The Australian Association of Social Workers described it as an “abuse of power and not the way to engage with vulnerable people”.

Association president, Karen Healy, said pursuing budget savings through “policies of fear and intimidation” would only further entrench people in poverty.

“The AASW and its members, professional social workers, know the damaging impact of intimidation on people with complex issues,” Healy said.

“The way to engage with people experiencing hardship and looking to their government for support is with empathy and compassion,” she said.