As Centrelink shares further personal data to defend criticisms of its debt recovery, the legality of its actions is in question. By Mike Seccombe.
Centrelink leaks more private data
The email began with a standard articulation of sympathy: “We express our sincere condolences to the family and friends of Rhys Cauzzo. This is a terrible situation for his loved ones and we understand how difficult it must be coming to terms with their loss.”
It continued: “We do not wish to further their grief, however, your article makes unreasonable and inaccurate assumptions about our process of recovering welfare overpayments which warrant clarification.”
It was the afternoon of February 18, hours after the publication in this newspaper of a story about the suicide of Rhys Cauzzo, who was being pursued for an alleged debt owed to Centrelink. The sender was a spokesperson inside the Department of Human Services.
In reality, there were only two points of factual clarification. The first was that the debt the department claimed Cauzzo owed was not identified by Centrelink’s automated system, but was raised manually.
The other related to the amount that Centrelink was pursuing, and the department’s clarification was not very helpful. Two different amounts were cited in separate letters of demand sent to Cauzzo by the government’s appointed debt collection agency, Dun and Bradstreet. One was $17,319.58, and the other $10,283.81.
The deceased’s mother and girlfriend believed the debt had been revised down, but were at a loss to explain why. They also believed the aggressive pursuit of this debt drove Cauzzo to suicide. His mother told police: “I believe strongly that this pushed him to his brink of despair.”
With regards to the debt, the government’s email simply stated: “We can confirm that the debt was not subsequently revised down.” There was no further explanation of the differing demands, despite requests for clarity.
But the email went much further than simply addressing those two issues. It went on to provide an account of the alleged overpayments received by Cauzzo, going back to 2011, and a recitation of the reviews by the agency and its contacts – and failed attempts at contact – with the late Rhys Cauzzo.
Such details are supposed to be protected – except in very specific circumstances – by the Privacy Act. Yet the government passed them on by email to this paper. The Saturday Paper had chosen not to report these details, out of respect for Cauzzo’s family, but has decided to publish this story as further evidence emerges of the government acting on the border of illegality in its treatment of welfare recipients and its disregard for their privacy.
Before we consider those issues, however, consider the speed of the response.
The story appeared on Saturday morning. By Saturday afternoon, the wheels of government were turning at remarkable speed. The department had marshalled the information, the office of the human services minister, Alan Tudge, had approved its release and, as the department told us this week: “Advice was provided by Chief Counsel prior to the release of the correcting information.”
Except, as previously noted, the detail provided was not for the most part “correcting information”. It was additional information. And this is a very relevant distinction.
When the reporter, Martin McKenzie-Murray, was putting the story together, the same departmental media unit had told him by email that it was “not appropriate for us to discuss personal details publicly”. Only afterwards did they provide the historical detail, or enough of it at least to bolster the government’s side of the dispute. Nowhere in the post-publication communication did they offer any explanation – far less apology – for the fact that they had sent the debt collectors after a young man with known mental health issues.
So, why does it matter whether the details provided by the department amount to “correcting” or merely additional information?
A media release by Tudge’s office on March 2 explained that while the 1988 Privacy Act set out principles preventing the public disclosure of government agencies, there were exceptions.
“Where a person makes a false public statement about their dealings with the Department of Human Services, whether through the media or otherwise,” it said, “social security law and family assistance law enables the Department to disclose customer information to the extent that it is necessary to correct factual inaccuracies or potentially misleading information.”
Self-evidently, Cauzzo did not make any false public statement. And the additional information about Cauzzo’s long history with Centrelink did not correct anything. The story did not suggest any alternative history.
Nor did his family. As his mother told The Saturday Paper this week: “I’m not saying that Rhys didn’t owe money. He may have for all we knew. But the way they went about it was just so wrong.”
While The Saturday Paper did update the story to make clearer the fact that Rhys Cauzzo’s debt was raised manually, it made no mention of the historical context provided, arguably unlawfully, by Centrelink.
Within a week of breaching privacy in the Cauzzo case, the government did it again, releasing the personal information of blogger Andie Fox, after she documented her struggles with Centrelink’s debt recovery program in an account to Fairfax Media.
This was even more flagrant. The minister’s office provided Fairfax journalist Paul Malone with official documents detailing her dealings with Centrelink and the tax office.
The subsequent story created a furore. The shadow minister for human services, Linda Burney, demanded an investigation by the federal police. Labor also commissioned a legal opinion from Robert Richter, QC, which it released this week. It held that the material disclosed to Malone was “protected information” and its improper disclosure was punishable by up to two years’ jail.
Richter’s advice said it was “reasonably clear” on the available evidence “that the Minister or one of his office’s staff has committed an offence”.
The question of the legality of the government’s actions was also explored at length in senate estimates last month. Senior departmental officials maintained they and the minister had acted within their rights.
How this plays out legally is far from certain. One thing that is abundantly clear, though, is that the government has no qualms about mining Centrelink data for any nuggets it can use against critics. It will pursue them up to the limits of the law and beyond the grave to defend its trouble-plagued welfare debt recovery system. As Barnaby Joyce said with regards to Fox: “If you want to keep your information absolutely private, don’t go and get the dole whilst you’ve also got a job.”
You can get some idea of the government’s success at intimidating victims of the Centrelink robo-debt fiasco by going to the list of submissions to the senate inquiry set up to investigate it.
Of 108 submissions received by the middle of this week, well over half came from people who did not want their names attached – although one can read about their circumstances – or are “confidential”. This demarcation means no one outside the committee can read them at all. Most of the rest came from various advocacy groups. Only nine come from named individuals.
That’s an extraordinary proportion, but it only hints at the apprehension felt by those concerned about the manifest failings of Centrelink’s automated debt recovery system. To get a better understanding of the fear, one needs to talk to some of those advocacy groups.
The National Council of Single Mothers and their Children’s chief executive, Terese Edwards, will be first up before the senate committee on Monday, when it begins a five-week series of hearings across the nation.
In anticipation of the senate inquiry, she sent word out on social media “encouraging people to speak and give evidence”. She had done the same before in relation to other inquiries, and had always been impressed at the response.
“This time, there was silence,” she says. “As a last resort I told people that if they were uncomfortable they could contact us and we could deliver their words for them.
“And that’s when I started getting private messages back from women saying that even though they felt hard done by, they were too intimidated to appear.”
They had been deterred, she says, by “an accumulative process of demonising people on income support” and the belief that the government and Centrelink would find a way to victimise them for telling their stories.
In particular, she says, they were put off by the government’s public treatment of Andie Fox.
“There was a lot of fear resulting from that case,” says Edwards. “Will we be placed under tighter scrutiny? Will our name be released? Will our personal information be given to the media?”
The interactions of her organisation’s constituents with Centrelink are particularly complex, she says, given that they often involve not only irregular work but irregular maintenance payments from former spouses, as well as multiple benefits such as childcare payments.
Her potential witnesses worried that if they spoke up, the government would sift through their Centrelink history and then use the information to attack their credibility and character.
Other advocacy groups heard the same concerns. And so, importantly, did Senator Rachel Siewert, the chairman of the body holding the inquiry into the robo-debt debacle.
“It was made very clear in estimates in February that the department and the government have no hesitancy at all about going public with personal details,” she says. “Basically, their response was that they had the power to do it and they would continue to do it.”
In response, she did something she’d never done before in more than a decade of senate committee work. She requested formal legal advice from the senate clerk. His response made it clear any retribution against a witness would be a breach of parliamentary privilege and contempt of the senate.
This was more than a political stunt. It went to the viability of Siewert’s committee receiving evidence.
“People out there are genuinely scared about what the government might do,” she says. “I’ve personally had emails from people saying they are concerned about the government knowing their identities. And I’ve heard the same story from organisations representing them.”
Siewert sought legal advice at her own initiative, but the committee as a whole resolved on other measures to protect witnesses from a vengeful government.
“There will be private sessions, in-camera sessions. There will be in-confidence Hansard and it will be basically just the senators on the committee and the committee secretariat who will know,” she says.
“And if people want to give evidence, but don’t want their names known, we can just say, ‘Julia said this’, ‘Fred said this’.”
Siewert says her committee has had recourse to such measures before but never in circumstances like these.
“We’ve done a couple of sensitive inquiries by the community where in-camera evidence has been given. One was in relation to the forced sterilisation of people with disabilities and one about forced adoptions. In both those cases it was about enabling people to feel safe about sharing deeply personal experiences.
“This is about making people feel they can talk without getting all their personal details splashed across the media, so they don’t feel intimidated by government.”
The problems with the robo-debt system are now well known. Last year the government dramatically increased its welfare compliance efforts, using a computerised system to search for welfare overpayments from as long as six years ago, and then aggressively pursuing repayment. Some 20,000 letters a week – as many as were formerly sent out in a year – were going out.
But because of inadequacies in the computer algorithms, 20 per cent of those debts were not owed at all, based on the government’s own figures. As many as 90 per cent, on some credible estimates, were incorrectly calculated.
Having incorrectly found people guilty of receiving welfare to which they were not entitled, the system made it very difficult, in many ways, for those people to prove themselves innocent.
Some of these issues have since been fixed: the letters from Centrelink now include a dedicated phone number people can ring, which gets answered promptly; the online portal has been upgraded; and the government has stopped demanding that people who dispute their debts begin repaying them even before their appeal has been heard.
But, it seems, the fundamental problem remains. The automated system continues to raise false debts.
And no doubt over the coming weeks and months, as the senate inquiry goes about its business, we’ll hear many more stories of financial and emotional hardship inflicted on tens of thousands
Rhys Cauzzo’s mother, Jennifer Miller, tells The Saturday Paper she will not attend the inquiry. She has not approached the committee to tell her son’s story and nor has the committee approached her.
“I decided I didn’t want to go further. It’s not going to bring my son back.”
She has, however, written to Alan Tudge about it. She’s still waiting for a reply. The speed at which Rhys’s private details could be raised and released that Saturday morning sits in stark contrast.
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This article was first published in the print edition of The Saturday Paper on April 8, 2017 as "Centrelink leaks more private data".
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