Effective until 30 June 2008
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| CSA's previous online law & policy guide Effective until 30 June 2008 |
6.3.3: CSA secrecy provisionsContext The two child support Acts contain secrecy provisions. These restrict the communication of 'protected information' and specify when and to whom CSA can lawfully release information. Legislative References Sections 16 and 16AA Child Support (Registration and Collection) Act 1988 Sections 150 and 150AA Child Support (Assessment) Act 1989 Explanation Protected information Protected information is personal information that a person obtains while performing their duties under, or in relation to, the Child Support legislation. Any personal information gathered by CSA, its employees and contractors, and other government agencies for the purposes of administering the Child Support legislation is protected information. People covered by the secrecy provisions The secrecy provisions of the Child Support legislation apply to all people occupying positions where they may obtain protected information about a CSA customer in the course of their duties under, or in relation to, the Child Support legislation. These are:
The secrecy provisions continue to apply to a person after they cease performing those duties. Offence to record or communicate protected information It is an offence under the secrecy provisions for a person to make a record of any protected information. It is also an offence for a person to communicate protected information about a person to someone other than that person (section 16(2) of the Registration and Collection Act, section 150(2) of the Assessment Act. The exception is where the person records or communicates the information for the purposes of the Child Support legislation, or where they are required to do so as part of their duties under, or in relation to, the Child Support legislation (section 16(2A) of the Registration and Collection Act, section 150(2A) of the Assessment Act). This means that CSA can make a record of personal information where it needs this information to administer a customer's child support case. CSA staff can access and use this personal information when they need it to carry out their duties in CSA, but not for other purposes. CSA can disclose protected information about a customer to the customer, his or her authorised representative, or to a person authorised by law. When a CSA officer discloses information to a person outside of CSA, they must identify the individual to ensure it only passes information to a person entitled to receive it. Another offence under the secrecy provisions applies to the unauthorised use of information by persons other than those listed above. For example, this offence would apply where personal information from CSA is sent incorrectly to a person (e.g. a letter is sent to the wrong person) and that person then records, communicates or otherwise uses that person information (section 150AA of the Assessment Act and section 16AA of the Registration and Collection Act). This offence does not apply if the personal information was obtained legally from a source other than the records of CSA or the Department. The penalty for breaching the secrecy provisions of the Child Support legislation is imprisonment for up to 1 year. (See Chapter 6.8 Offences and prosecution for more information on the secrecy offences). When CSA will disclose a customer's information to another person Certain provisions in the Child Support legislation require CSA to provide protected information about a customer to a person other than that customer. It is not an offence to disclose protected information where the disclosure is required or authorised by law.
Disclosure by consent CSA is authorised to communicate protected information to a person who has the consent of the person (to whom the information relates) to obtain that information (section 150(3)(f) of the Assessment Act and section16(3)(f) of the Registration and Collection Act). Disclosures to the other parent Assessment Notices: CSA discloses some personal information about one parent to the other parent, in child support assessment notices. This information can include the parent's name and income, whether the parent is in receipt of social security benefits, the number of dependent children the parent has, and the names and dates of birth of any other children the parent is assessed to pay child support for (section 76 of the Assessment Act). The purpose of this disclosure is to provide the other parent with enough information to understand how the child support assessment is calculated and, if they think the assessment is unfair or incorrect, to exercise their rights to challenge the assessment. This disclosure is required by law and is permitted under the Privacy Act. Information about debt recovery action: CSA is also authorised to inform a payee of action taken to recover their child support debt (section 113(2) of the Registration and Collection Act). This means that CSA may disclose some personal information about the payer to the payee. CSA will not disclose personal information that is not directly relevant or necessary to keep the payee informed (e.g. CSA will not disclose the name of the payer's employer; that they are unemployed; or the name of their bank). Examples CSA advises M (the payee) that it is taking litigation action
and seeking a judgment against the property of F (the payer). CSA does not
advise M of the details of F's property.
CSA advises F (the payee) that it issued a warrant of execution against M (the payer) which was returned because the court was unable to find any assets to seize. CSA advises F (the payee) that it has intercepted M's tax refund. CSA advises M (the payee) that it is arranging employer withholding to collect child support from F (the payer). It does not tell M the name of F's employer, or the date that F started work. Information for private payee enforcement proceedings: Necessary information may be released by CSA to a requesting payee (section 150(4G) of the Assessment Act and section 16(4G) of the Registration and Collection Act) where they have notified CSA of their intention to institute court proceedings to recover a child support debt in accordance with section 113A of the Registration and Collection Act. However, any information released by CSA would be for those proceedings only and the person receiving the information would become subject to the secrecy provisions in his or her handling of the information. Change of assessment: When a parent applies for a change of assessment CSA must send a copy of the application form (including detailed financial information and any accompanying documentation) to the other parent (section 98G(1) of the Assessment Act). CSA will then seek a response from the other parent and send a copy of the response to the applicant, along with any accompanying documents (section 98G(3) of the Assessment Act). Objections: When a parent has objected to a CSA decision, CSA is required to send the objection and accompanying documents to the other parent (section 85 of the Registration and Collection Act). CSA will seek a response from the other parent. In order to make a decision in a way that is procedurally fair CSA will necessarily discuss a parent's personal information with the other parent. The purpose of this disclosure is to provide the other parent with enough information to be able to comment on any information that is being considered by CSA and to allow them to be able to exercise their rights to challenge the decision. This disclosure is necessary in order to make a decision under the child support legislation. As it is for the purposes of the child support legislation the disclosure is permitted by the secrecy provisions. SSAT review: See heading Disclosure to the Social Security Appeals Tribunal below. Disclosure to a person other than the other parent The Child Support legislation allows CSA to obtain information and collect outstanding child support from third parties such as employers, banks, accountants, trustees in bankruptcy and lawyers. In order to do this, CSA may disclose some personal information about the child support customer to the third party. The information that CSA may disclose could include identity details such as name, address or date of birth, the amount of child support payable, and the amount of unpaid child support. Example CSA sends a notice to F's employer which includes personal
information about F. The notice includes F's name, address, date of birth and
specifies the amount of child support to be deducted from F's wages.
Disclosure to a customer's authorised representative CSA will communicate with a person that a customer has authorised to act on their behalf. This may involve CSA disclosing protected information about the customer to the customer's representative. However, CSA will not disclose to a parent's authorised representative any personal information about the other parent in the child support case. See the separate topic below for more information about CSA's policy for dealing with authorised representatives. Disclosure to other government agencies CSA can communicate protected information to specified government agencies in certain circumstances. Department of Human Services (DHS): CSA can communicate protected information to the Secretary of this department or an officer or employee of this department, where this is for the purposes of administering the Child Support legislation (section 16(3)(a) Registration and Collection Act and section 150(3)(a) Assessment Act). Department of Veterans' Affairs (DVA): CSA can communicate protected information to the Secretary of DVA or an officer or employee of DVA, where this is for the purposes of administering Commonwealth laws for pensions, benefits or allowances (section 16(3)(b) Registration and Collection Act and section 150(3)(b) Assessment Act). Centrelink: CSA can communicate protected information to the Chief Executive Officer of Centrelink or an officer or employee of Centrelink, where this is for the purposes of administering the Child Support legislation or Commonwealth laws for pensions, benefits or allowances (section 16(3)(ba) Registration and Collection Act and section 150(3)(ba) Assessment Act). The information CSA discloses to Centrelink includes details of the amount of child support a parent is entitled to be paid and the amount of child support that CSA has paid to the payee. This allows Centrelink to assess and adjust parents' benefits accordingly. CSA can also pass on information that could help to identify fraudulent pension claims and respond to specific requests for information from Centrelink. Medicare: CSA can communicate protected information to the Chief Executive Officer of Medicare or an employee of Medicare, where this is for the purpose of the performance of functions or the exercise of powers under the Medicare Australia Act 1973 (section 16(3)(bb) of the Registration and Collection Act and section 150(3)(bb) of the Assessment Act). Australian Taxation Office: CSA can communicate protected information to a person performing duties under or in relation to legislation administered by the Commissioner of Taxation to allow them to perform those duties (section 16(3)(ca) of the Registration and Collection Act and section 150(3)(ca) of the Assessment Act). CSA exchanges personal information such as names and tax file numbers with the Australian Taxation Office (ATO). This exchange enables CSA to determine when new taxable income information is available for parents. The exchange also allows CSA to identify when a person has both a tax refund amount due and a child support debt owing, so it may require the ATO to pay the amount to CSA to be applied to the debt. Attorney-General's Department: CSA can communicate protected information to the Secretary of the Attorney-General's Department or an officer or employee of that Department, for the purposes of enforcing overseas maintenance liabilities (section 16(3)(d) Registration and Collection Act and section 150(3)(d) of the Assessment Act). Contractors and other persons providing services to the Commonwealth: CSA can communicate protected information to a person performing duties under, or in relation to, the Child Support legislation to allow them to perform those duties (section 16(3)(c) of the Registration and Collection Act and section 150(3)(c) of the Assessment Act). Disclosure to any person to prevent credible threat CSA can communicate protected information to any person if the information concerns a credible threat to the life, health, or welfare of a person and:
See section 16(3)(e) of the Registration and Collection Act and section 150(3)(e) of the Assessment Act, Chapter 6.10 for information about family violence. Disclosure to a court It is not an offence under the Child Support legislation for CSA to communicate protected information to a court because a court is not a person. However, CSA is not required to communicate protected information to a court except for the purposes of either of the Child Support Acts (section 16(5) of the Registration and Collection Act and section 150(5) of the Assessment Act). The exception is where a court has ordered CSA to provide information about a child's location (section 67J of the Family Law Act). These orders are referred to as Commonwealth information orders or location orders. They are mandatory and a person must comply with them in spite of any other law (sections 67M(6) and 67N(10). The secrecy provisions in the child support legislation also make it clear that CSA must comply with Commonwealth information orders or location orders (section 16(9) of the Registration and Collection Act and section 150(9) of the Assessment Act). (See Chapter 6.4 for information about subpoenas). Disclosure to the Social Security Appeals Tribunal When a parent applies to the SSAT for a review of a CSA decision CSA is required to send the SSAT and the parties to the review a statement about the decision and copies of any documents that are relevant to the review of the decision (sections 95(3) and 96 of the Registration and Collection Act). The parties will generally be both parents and any other person who has been made a party. The SSAT may also ask CSA to provide additional information for the purposes of the review (section 103K). (See Chapter 4.2 for further information about SSAT review of decisions.) In some situations the SSAT may direct a person not to disclose the information in the statement or document or may limit its use for particular purposes (section 96). The SSAT can also direct CSA not to disclose a statement or document or can direct that its disclosure be restricted (section 98). Disclosure to Commonwealth investigating and auditing agencies
These Commonwealth agencies are authorised by Parliament to investigate or audit CSA processes, and require CSA to provide information or documents. CSA officers can provide protected information to officers of these agencies because it is in the course of their duties under, or in relation to, the Child Support legislation (section 16(2A) of the Registration and Collection Act and section 150(2A) of the Assessment Act). Disclosure to the Minister CSA can communicate protected information to brief a Minister for various purposes in relation to his or her responsibilities. A 'Minister' means a Minister who administers child support legislation and the Prime Minister (section 150(4C) of the Assessment Act and section 16(4C) of the Registration and Collection Act). Specifically, CSA may communicate protected information to a Minister in the following circumstances:
Disclosure to persons with a 'sufficient interest' In certain circumstances (listed under the subheadings below) disclosures may be made to a person with a 'sufficient interest' in the protected information. CSA must be satisfied that, in relation to the purposes of the communication, the person has a genuine and legitimate interest in the information (sections 150(4) and 150(4A) of the Assessment Act and sections 16(4) and 16(4A) of the Registration and Collection Act). A Minister administering the child support legislation or the Prime Minister would have sufficient interest. A further requirement which must be met (before information could be released in the circumstances outlined below) is that the information in question could not reasonably be obtained from a source other than the Department (section 150(4)(a) of the Assessment Act and section 16(4)(a) of the Registration and Collection Act). Mistake of fact and integrity of the administration CSA is able to communicate protected information to correct a mistake of fact about the administration of the child support legislation, if:
Section 150(4B) of the Assessment Act and section 16(4B) of the Registration and Collection Act. Missing persons CSA is able to communicate protected information where the information is about a missing person where there is no reasonable ground to believe the missing person would not want the information communicated AND it is necessary:
See section 150(4D) of the Assessment Act and section 16(4D) of the Registration and Collection Act. Deceased persons CSA can communicate protected information where the information is about a deceased person where there is no reasonable ground to believe that the deceased person would not have wanted the information communicated and:
See section 150(4E) of the Assessment Act and 16(4E) of the Registration and Collection Act. CSA may also communicate protected information if the information is to establish:
See section 150(4F) of the Assessment Act and 16(4F) of the Registration and Collection Act. Version 1.4 Issued 3 August 2007 |
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