6.3.3 Secrecy Provisions

Context

The 2 child support Acts contain secrecy provisions. These restrict the communication of 'protected information' and specify when and to whom the Registrar, or a person authorised by the Registrar can lawfully release information.

Act references

CSRC Act section 16, section 16AA, section 121B

CSA Act section 150, section 150AA

AAT Act section 35, section 37

On this page

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 DHS, it's 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 person in the course of their duties under, or in relation to, the child support legislation. These are:

  • the Child Support Registrar
  • the Minister for Human Services
  • the Minister for Social Services
  • the Secretary of DHS
  • the Secretary of DSS
  • DHS employees
  • DSS employees
  • the Commissioner of Taxation
  • a person employed or appointed by, or providing services to, the Commonwealth
  • the Secretary of the Attorney-General's Department or an officer of that department who has received information in relation to overseas maintenance orders or the enforcement of child support overseas
  • any person if the information concerns a credible threat to the life, health or welfare of a person
  • a person with a 'sufficient interest'
  • a payee of a registered maintenance liability who has notified DHS in accordance with CSRC Act section 113A of their intention to institute private payee enforcement proceedings
  • members of the AAT
  • officers of the Court.

The secrecy provisions continue to apply to a person after they cease performing those duties.

Offence to record or communicate protected information unless exceptions apply

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 (CSRC Act section 16(2), CSA Act section 150(2)).

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 (CSRC Act section 16(2A), CSA Act section 150(2A)).

This means that DHS can make a record of personal information where that information is needed to administer a person's child support case. DHS staff can access and use this personal information when they need it to carry out their duties, but not for other purposes. DHS can disclose protected information about a person to the person, his or her authorised representative, or to a person authorised by law. When an officer discloses information they must ensure they only pass 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 DHS 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 information (CSA Act section 150AA and CSRC Act section 16AA). This offence does not apply if the personal information was obtained legally from a source other than the records of DHS or a relevant department.

The penalty for breaching the secrecy provisions of the child support legislation is imprisonment for up to one year. See 6.8 for more information on the secrecy offences.

When protected information can be disclosed to another person

Certain provisions in the child support legislation require the Registrar to provide protected information about an individual to a person other than that individual. It is not an offence to disclose protected information where the disclosure is required or authorised by law.

The Registrar 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 (CSA Act section 150(3)(f) and CSRC Act section 16(3)(f)).

Disclosure to the other parent

Assessment Notices: DHS 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, the number and age ranges of any dependent children the parent has, and the number and age ranges of any other children the parent is assessed to pay child support for (CSA Act section 76). 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 therefore also permitted under the Privacy Act 1988.

Information about debt recovery action: The Registrar is also authorised to take such steps as the Registrar considers appropriate to inform a payee of action taken to recover their child support debt (CSRC Act section 113(2)). This means DHS may disclose some personal information about the payer to the payee. DHS will not disclose personal information that is not directly relevant or necessary to keep the payee informed (e.g. DHS will not disclose the name of the payer's employer, that they are unemployed, or the name of their bank).

Examples:

DHS advises M (the payee) that litigation action is being taken and a judgment against the property of F (the payer) is being sought. DHS does not advise M of the details of F's property.

DHS advises F (the payee) that a warrant of execution has been issued against M (the payer) which was returned because the court was unable to find any assets to seize.

DHS advises F (the payee) that M's tax refund has been intercepted.

DHS advises M (the payee) that employer withholding to collect child support from F (the payer) is being arranged. DHS does not tell M the name of F's employer, or the date that F started work.

DHS advises M (the payee) that a Departure Prohibition Order (DPO) has been issued to prevent F (the payer) from leaving the country. DHS does not tell M where F was intending to travel to, or the dates of the travel.

DHS advises M (the payee) that a DPO has not been issued despite receiving information from M that F (the payer) was intending to travel. DHS does not disclose to M the specific reasons for this decision.

Information for private payee enforcement proceedings: Necessary information may be released by DHS to a requesting payee (CSA Act section 150(4G) and CSRC Act section 16(4G)) where they have notified the Registrar of their intention to institute court proceedings to recover a child support debt in accordance with CSRC Act section 113A. However, any information released by DHS 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, the Registrar must send a copy of the application form (including detailed financial information and any accompanying documentation) to the other parent (CSA Act section 98G(1)). The Registrar will then seek a response from the other parent and send a copy of the response to the applicant, along with any accompanying documents (CSA Act section 98G(3)).

Objections: When a parent has objected to a decision, the Registrar is required to send the objection and accompanying documents to the other parent (CSRC Act section 85). The Registrar will seek a response from the other parent. In order to make a decision in a way that is procedurally fair, DHS 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 the Registrar 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.

AAT review: See Disclosure to the AAT below.

Disclosure to a person other than the other parent

The child support legislation allows the Registrar 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, DHS may disclose some personal information about parents to third parties. The information that DHS 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: The Registrar 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 an authorised representative

DHS can communicate with a person who has been authorised to receive information on behalf of a parent or carer. This may involve DHS disclosing protected information to the authorised representative, including information about the other party in the child support case that would otherwise be disclosed to the parent or carer. More information about dealing with authorised representatives is also available in 6.3.6.

Disclosure to specified government agencies & office holders

Protected information can be communicated by the Registrar, or officers with appropriate authority, to specified government agencies and office holders in certain circumstances.

DSS: Protected information can be communicated to the Social Services Secretary or an officer or an employee of DSS for the purposes of administering the child support legislation (CSRC Act section 16(3)(a) and CSA Act section 150(3)(a)).

Human Services Secretary and Chief Executive Centrelink: Protected information can be communicated to these officers and to other authorised officers or employees where this is for the purposes of administering the child support legislation or Commonwealth laws for pensions, benefits or allowances (CSRC Act section 16(3)(ba) and CSA Act section 150(3)(ba)). The information able to be disclosed includes details of the amount of child support a parent is entitled to be paid and the amount of child support that has been paid to the payee. This allows for assessment and adjustment of parents' benefits accordingly. DHS can also pass on information that could help to identify fraudulent pension claims and respond to specific requests for information from Centrelink.

Chief Executive Medicare: Protected information can be communicated to the Chief Executive Medicare and to other authorised officers or employees, where this is for the purpose of the performance of functions or the exercise of powers under the Medicare Australia Act 1973 (CSRC Act section 16(3)(bb) and CSA Act section 150(3)(bb)).

Department of Veterans' Affairs (DVA): DHS 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 (CSRC Act section 16(3)(b) and CSA Act section 150(3)(b)).

ATO: DHS 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 (CSRC Act section 16(3)(ca) and CSA Act section 150(3)(ca)).

DHS exchanges personal information such as names and tax file numbers with the ATO. This exchange enables DHS to determine when new taxable income information is available for parents. The exchange also allows DHS to identify when a person has both a tax refund amount due and a child support debt owing, as the Registrar may require the ATO to pay the amount to be applied to the child support debt.

Attorney-General's Department: DHS 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 (CSRC Act section 16(3)(d) and CSA Act section 150(3)(d)).

Disclosure to contractors & others providing services to the Commonwealth

DHS 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 (CSRC Act section 16(3)(c) and CSA Act section 150(3)(c)).

Disclosure to any person to prevent credible threat

DHS can communicate protected information to any person if the information concerns a credible threat to the life, health, or welfare of a person and:

  • DHS believes on reasonable grounds that the communication is necessary to prevent or lessen the threat, or
  • there is reason to suspect that the threat may afford evidence that an offence may be, or has been, committed against a person and the information is communicated for the purpose of preventing, investigating or prosecuting such an offence.

See CSRC Act section 16(3)(e), CSA Act section 150(3)(e), and 6.10 for information about family violence.

Disclosure to a court

It is not an offence under the child support legislation for DHS to communicate protected information to a court because a court is not a person. However, DHS is not required to communicate protected information to a court except for the purposes of either of the child support Acts (CSRC Act section 16(5) and CSA Act section 150(5)).

The exception is where a court has ordered the Registrar to provide information about a child's location (FL Act section 67J). 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 (FL Act sections 67M(6) and 67N(10)). The secrecy provisions in the child support legislation also make it clear that the Registrar must comply with Commonwealth information orders or location orders (CSRC Act section 16(9) and CSA Act section 150(9)).

See 6.4 for information about subpoenas.

Disclosure to the AAT

The AAT, like the court, has the authority to require the production of documents or the answering of questions (CSRC Act section 16(1) and CSA Act section 150(1)).

Review of a decision of the Registrar

When a parent applies to the AAT for a first or second review of a decision, the Registrar is required to send the AAT 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 (AAT Act section 37 and CSRC Act sections 95C). The parties will generally be both parents, the Registrar and any other person who has been made a party to the review. The AAT may also ask the Registrar to provide or obtain additional information for the purposes of the review (CSRC Act section 95G and section 95J).

See 4.2 for further information about AAT review of decisions.

In some situations the AAT may direct a person not to disclose the information in the statement or document or may limit its use for particular purposes. The AAT can also direct the Registrar not to disclose a statement or document or can direct that its disclosure be restricted (AAT Act section 35(3), section 35(4) and CSRC Act section 98B, section 98C).

Review of family assistance or social security decisions

The Registrar is not required to communicate protected information to the AAT when it is reviewing a care determination made by the Secretary unless it is for the purposes of either of the child support Acts (CSRC Act section 16(5) and CSA Act section 150(5)).

The AAT may request information from the Registrar when it is reviewing a care determination made by the Secretary. The Registrar will provide the information to the AAT as the percentage of care will ultimately impact on the child support assessment.

The AAT may request information from the Registrar when it is reviewing a non-child support related matter, for example where the AAT is reviewing a decision relating to social security pensions, benefits or allowances. Whilst the Registrar is not required to comply with this request, this information will be provided because it is consistent with the Registrar's ability to release the same information to the Chief Executive Centrelink under CSRC Act section 16(3)(ba) and CSA Act section 150(3)(ba).

Example: The AAT is reviewing a determination made by the Secretary rejecting a person's claim for FTB. The person concerned has a child support assessment in place and the AAT is satisfied that the Registrar may have information that is relevant to the decision under review. If the AAT requests information from the Registrar, that request will be complied with if the information is in the Registrar's possession.

Disclosure to Commonwealth investigating & auditing agencies

  • Commonwealth and Defence Force Ombudsman
  • Privacy Commissioner
  • Auditor-General or officers of the Australian National Audit Office
  • Department of Finance.

These Commonwealth agencies are authorised by Parliament to investigate or audit the departmental processes and to make specific decisions for which they are responsible, and require the provision of information or documents. DHS 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 (CSRC Act section 16(2A) and CSA Act section 150(2A)).

Disclosure to the Minister

Protected information can be used to brief a Minister for various purposes in relation to his or her responsibilities. A 'Minister' means the Minister for Social Services, who administers child support legislation, the Minister for Human Services, who has responsibility for DHS as the service delivery agency, and the Prime Minister (CSA Act section 150(4C) and CSRC Act section 16(4C)).

Specifically, protected information may be communicated to a Minister in the following circumstances:

  • so that the Minister can respond to complaints or issues raised with the Minister,
  • in respect of a meeting or forum that the Minister is to attend,
  • in relation to issues raised or proposed to be raised publicly (by or on behalf of the person to whom the 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,
  • where it involves a possible error or delay on the part of the Registrar or an officer or employee of DHS, or
  • where it involves an instance of an anomalous or unusual operation of the child support legislation.

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. The Registrar or a person authorised by the Registrar must be satisfied that, in relation to the purposes of the communication, the person has a genuine and legitimate interest in the information (CSA Act sections 150(4) and 150(4A) and CSRC Act sections 16(4) and 16(4A)). A Minister administering the child support legislation, a Minister responsible for the delivery of services under the 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 DHS or DSS (CSA Act section 150(4)(a) and CSRC Act section 16(4)(a)).

Mistake of fact & integrity of the administration of the legislation

Protected information is able to be communicated to correct a mistake of fact about the administration of the child support legislation, if the integrity of that administration would be at risk if the mistake were not corrected. See CSA Act section 150(4B) and CSRC Act section 16(4B).

Missing persons

DHS is able to communicate protected information where the information is about a missing person and there is no reasonable ground to believe the missing person would not want the information communicated and it is necessary:

  • to assist a court, coronial enquiry, Royal Commission, department or authority, of the Commonwealth, a state or a territory, in relation to the whereabouts of the missing person, or
  • to locate a person (including the missing person).

See CSA Act section 150(4D) and CSRC Act section 16(4D).

Deceased persons

DHS can communicate protected information where the information is about a deceased person and there is no reasonable ground to believe that the deceased person would not have wanted the information communicated and:

  • it is necessary to assist a court, coronial enquiry, Royal Commission, department or authority, of the Commonwealth, a state or a territory, in relation to the death of a person,
  • it is necessary to help a person locate a relative or beneficiary of the deceased person, or
  • it is in relation to the administration of the estate of the deceased person.

See CSA Act section 150(4E) and CSRC Act 16(4E).

DHS may also communicate protected information if the information is to establish:

  • the death of a person, or
  • the place where the death of a person is registered.

See CSA Act section 150(4F) and CSRC Act section 16(4F).

Disclosure to overseas authorities

DHS can give protected information to an overseas authority if:

  • a request from an overseas authority for information is received,
  • the request is made in reliance on an international maintenance arrangement, and
  • it is necessary or convenient for the purposes of the international maintenance arrangement to give the information to the overseas authority.

See CSRC Act section 121B.

Example: New Zealand Inland Revenue Child Support (NZIRCS) requests information from the Registrar about the income of a payer who is resident in Australia for the purpose of making a child support assessment in New Zealand. This request is made in reliance on the Australia and New Zealand Agreement (1.5.2). It is necessary for the purposes of this agreement for the Registrar to provide the information. DHS can disclose this information to NZIRCS.

Last reviewed: 16 May 2016