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“Belief” is not enough to justify legislation to reveal private data

On Thursday, in the midst of public outrage at Human Services Minister Alan Tudge’s doxxing of a Centrelink user, legislation allowing the Department of Veteran’s Affairs to give private information to the media passed through the lower house with bipartisan support, and almost unnoticed.

The power to legally release a citizen’s private information to the media is argued by politicians as necessary, in order for agencies to respond to people they believe are deliberately misleading the public and in so doing, undermining the public’s confidence in that agency.

Look. I could write an entire post on the irony of citizens undermining confidence in agencies. Think robo-debt for a start. It’s my “belief” that there’s no citizen alive capable of inflicting as much damage on government agencies as they inflict upon themselves, all too often exacerbated by the minister supposed to lead them. Nobody could undermine public confidence in Centrelink better than Hank Jongen and Alan Tudge.

The significant words in the justification for this legislation are they believe. Government agencies and ministers do not have to prove you are deliberately misleading the public and undermining an agency. They simply have to believe you are in order to legally release your private data.

Of course you can fight them after the fact. You can take them to court to make them prove their belief. But by then you’re all over the media, you’re traumatised, and it’s too late. Governments have deep pockets, and you most likely do not.

You have also compulsorily supplied agencies with the very information they now intend to use against you, because they believe your complaints, impressions, and opinions undermine them.

I’ve carefully re-read the article by Andie Fox that caused Alan Tudge to release her data to Fairfax because he “believed” her commentary undermined public confidence in Centrelink.

Ms Fox wrote an opinion piece. It consists almost entirely of how she felt during her encounters with Centrelink. The only points of dispute Tudge could find are a couple of dates, and numbers of phone calls.

According to Alan Tudge, this is sufficient to undermine public confidence in Centrelink, and justifies his release of her private data to Fairfax. Clearly, this is an absolutely ridiculous claim on Tudge’s part, and an abhorrent abuse of his power.

In fact, the power of Ms Fox’s piece is not in a Tudge-like gotcha game with the agency, but rather in her subjective experience of engaging with Centrelink, one with which thousands and thousands of other users can identify.

What Tudge’s reaction demonstrates is that we absolutely cannot trust ministers and senior public servants to exercise good judgement in their use of this legislation.

It demonstrates that citizens must not tolerate legislation that is so open to abuse by ministers and senior public servants, legislation that is based solely on the grounds of their beliefs.

Politicians need to fully explain why they need such legislation in the first place, and in the second, why they feel the need to extend it to include veterans. It wouldn’t have anything to do with military personnel speaking out about the ADF’s stance on the effects of anti-malarial drug Mefloquine, would it?

No senior public servant and no minister should have the power to publicly release a citizen’s private data simply because he or she believes there may be an adverse outcome for an agency. This is an attempt by politicians to silence all dissent by instilling a terror of possible consequences.

Supplying private data to these agencies is compulsory. Politicians are demanding that in handing over our private data, we also agree to their release of it to media should they believe any public commentary we make might adversely affect their interests.

This is an untenable situation for citizens, and a massive over-reach on the part of politicians.

Postscript: Acting Senate Clerk Richard Pye has acknowledged that Tudge’s release of private data may have a “chilling effect” on witnesses at next week’s inquiry into Centrelink Robo-Debt. 

Mr Pye has warned that any attempts at interference with witnesses will be considered to be contempt. 

We have a government that has to be warned not to interfere with witnesses in a Senate inquiry. Think about that. 

 

This article was originally published on No Place For Sheep.

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19 comments

  1. Florence nee Fedup

    Should they be able to use our email address to search the net for any comments we make? The information was used purely for political reasons, to save the so called minister’s bacon. If a person has rorted the department, as he claimed they should be prosecuted. Sadly they have dismantled the unit that carries out this function.

    The very least, the person concerned should be contacted, investigation occur. All Trudge has released is allegations. Will remain so until a conviction occurs in court of law.

    This is why in a democracy, separations of powers are essential to protect it.

    Trudge and head department role is vindictive and childish at the very least.

    If legal, immediate legalisation is needed to outlaw it.

  2. Terry2

    The Department of Human Services (DHS) is governed by the Privacy Act 1988 and they say on their website that :

    “We are bound by strict confidentiality and secrecy provisions in social security, families, health, child support and disability services law. These provisions limit how we use your information and when and to whom it can be released. We also have obligations under the Privacy Act 1988”.

    I have read the Australian Privacy Principles (APP) and cannot see where the DHS has the right to disclose personal information – in this case sending it to several journalists – without, at the very minimum, the approval of the individual.

    It is just as well that this matter has been reported to the AFP as, if the DHS have found a way around the APP we need to know about this and ensure that this loophole is closed.

    Does anybody know where Tudge is claiming the statutory authority to release confidential personal information to the media ?

  3. paulwalter

    Consider the mentality that drives the Turnbull government (and sections of the Opposition?)

    Some excellent indirect backgrounding on the sort of lunacy that breeds the nasty and vicious rubbish inflicted at some $ cost by replicants like Porter and Tudge, from Australia’s best mainstream political writer. Read and ask yourself why is insanity endemic, epidemic and the habituated, unquestioned norm.

    https://www.theguardian.com/australia-news/2017/mar/04/coalitions-laser-like-focus-only-sees-what-it-wants-to-see#comment-94268092

  4. Jaquix

    A slippery, slippery slope. Tudge allowing private information about that lady out to the media is totally, totally wrong. He could have issued a simple statement about the Departments position, but definitely NO private information. That is PERSECUTION. Or the first step towards it. Its State sanctioned ABUSE.

  5. Gangey1959

    Surely minister trudge is not suggesting that Centerlink’s image was completely untarnished BEFORE Ms Fox wrote her article?
    He, christless plodder, pm trumble et al have been fielding serious questions of complete inability by Centerlink to provide proper service to the community since before even the Robodebt debacle.
    This is bullshit. Come and get me Trudge. I don’t give a f*ck.

  6. paulwalter

    Terry 2 “gets” it…”Oh, Brave New World… with creatures such as these in it”.

    It is an attempt at normalisation of the surveilance state, as Webb Dock was the frontal assault intended to bring down the unions and dismantle dissent nearly twenty years ago.

  7. Wayne Turner

    No surprise when we have this fascist government.

  8. Kyran

    Indeed, Terry2, there are so many aspects to this that would be incapable of withstanding any scrutiny. Just with regard to the Privacy Act, it was a fatally flawed document on its inception. Exempted entities have always confounded me.

    “33.44 In relation to the private sector, certain entities are excluded specifically from the definition of ‘organisation’ and therefore are exempt from compliance with the NPPs, unless they fall within one of the conditions under which the exemption does not apply. These entities include small business operators, registered political parties, state and territory authorities, and prescribed state and territory instrumentalities. As a result, a large number of entities are exempt from the Privacy Act. The Australian Government Department of Employment, Workplace Relations and Small Business has estimated that approximately 94% of businesses may be exempt from the private sector provisions of the Act.”

    With regard to the media, which is meant to act as a scrutineer of activities that may be detrimental to the wellbeing of a society;

    “33.52 Even where an exemption may be justified, sometimes its scope under the existing provisions of the Privacy Act is too wide. For instance, media organisations are exempt in relation to activities done ‘in the course of journalism’, provided that they are publicly committed to certain privacy standards. The term ‘journalism’ and other key terms, however, are not defined. In addition, ‘media organisation’ is defined to mean an organisation the activities of which consist of collecting, preparing or disseminating news, current affairs, information or documentary (and related commentary, opinion and analysis) to the public. Arguably, the use of the word ‘information’ separately from ‘news’, ‘current affairs’ and ‘documentary’, makes the exemption too wide. The lack of criteria for media privacy standards also means that public commitment to any privacy statement—even one that has little substance—may allow an individual or organisation to take advantage of the exemption.”

    http://www.alrc.gov.au/publications/For%20Your%20Information%3A%20Australian%20Privacy%20Law%20and%20Practice%20%28ALRC%20Report%20108%29%20/33-overvie

    In this instance, the government appears to be relying on a provision of the Social Security (Administration) Act, Sect 202, and a provision of one of the Taxation Acts to pursue its purpose, whilst not even paying lip service to any spirit of the Privacy Act, let alone its literal intent.
    Given the monumental incompetence of this government, all they have succeeded in doing is drawing attention to the deficiencies of departments and the deficiencies of the rules that should be overseeing them. And the deficiencies of the media, who are supposed to be keeping the bastards honest. The similarities between this and the Duncan Storrar saga, or the Freya Newman saga, are self evident. As Gangey1959 points out, they are attempting to protect ‘brand recognition’, as if, somehow, Centrelink was a commercial product, not a social welfare provider. Or that they have behaved in a manner that observes their obligations, rather than their image.
    Labor could make a meal out of this. Take the Law Reform Commission Report and demand a redo of the Privacy Act. Our Privacy Act has more exemptions than most OECD countries. That is not healthy. Demand an inquiry into media regulation, performance and independent oversight in terms of governance.
    Of course, this will never happen. Dreaming is good every now and then.
    “We have a government that has to be warned not to interfere with witnesses in a Senate inquiry. Think about that.”
    Thank you, Ms Wilson and commenters. Take care

  9. kerri

    The public lost their faith in Centrelink long before this whole debacle. As an extension of the punitive, class warfaring LNP government Centrelink has done very little to help itself or its customers in the eye of the public. To name and shame one woman puts an inordinate amount of faith in that one woman’s capacity to bring down a government department. But then, Tudge’s vindictive response to Andie Fox will no doubt be all her fault and so she will be seen by the government as having possessed that power.

  10. Florence nee Fedup

    The problem this mob and their ilk truly believe anyone getting benefits from the government are out to rip system off. That is how they justify all their actions.

    How many have this mob taken to court, getting convictions. To justify their actions, must be many times more than in the past. Funny they don’t highlight that figure.

    If he took time to work with they woman and her problem, I would be more impressed.

    Only reasoning I can see for his action is as a warning to others not to follow her lead.

    They are out to demonise all that need assistance. They imply these people have never worker, got a education and are nothing but scrum.

    One got same feeling from PM in relation to wage cuts through lowering penalty rates. They aren’t important in the scheme of things.

  11. Kaye Lee

    Whatever happened to their oft used line “I cannot comment on individual cases”?

  12. Terry2

    Kyran

    Thanks for your researching skills ; awesome !

    The Social Security (Administration) Act section 202 is a real wriggler.

    I note ss (2AA) :

    (2AA) A person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person.

    This could be a defining moment : the rights of the individual v the punitive and discriminatory power of the state……….pitch forks and banners to the fore.

  13. paulwalter

    “You may surmise as you will, I couldn’t possibly comment”- Urquhart.

    Never fail to be impressed with Kyran’s conrtibutions here. Yes friend, weep.

    Weep till the tears of frustration pour down your cheeks and fill a river..

  14. Kyran

    Cheers, Terry2. The 2AA you are referring to is an oft used 3rd party disclosure provision. You can be entitled to disclose information to a third party as long as you remove identifiers that could be linked to an individual, particularly when it is the 2nd party. As with everything this government does, epic fail. As an aside, it wasn’t so much research as recollection. In various capacities, I made three submissions to the committee overseeing the introduction of the Privacy Act. I made two submissions to the Victorian committee’s overseeing the introduction of the Victorian Privacy Act and the Surveillance Devices Act.
    It took me that long to work out that they had drafts of legislation, fatally flawed in every instance, that were to be appeased by the illusion of consultation. Lawyer’s picnics.

    “Whatever happened to their oft used line “I cannot comment on individual cases”?”
    Not sure if you noticed this one, Ms Lee. That thing, Dutton, was doing a ‘presser’ on Friday about some drug bust that he and his fellow potatoes had managed. The ASRC and an affiliate, DASSAN, had reported four boats had arrived in Darwin containing asylum seekers, many of whom were reportedly women and children. When asked in the ‘presser’, he was more than happy to report they were miscreant Vietnamese fisherman. The occupants of those boats are still in a Darwin hotel. No access by doctors, let alone legal representatives. Our media is barely interested.
    You see? Even a git, such as that thing, can comment on individual cases. When it suits him. All hail the new prime miniature.

    I’m not ready for the pitch forks yet. March may be an interesting month though.
    Take care

  15. passum2013

    You know if we were to go through Tudges Garbage we would gain a lot of intelligence on him , If we went through Jorgans garbage you would find nothing as he has others to do his job and is paid for nothing so hows that fair in comparison to the staff changes he has approved and budget restraints on the system he should be supporting not being a yes man to any particular government . if we went through Turn-bulls garbage you realy would find something just plenty of Bull type of garbage like this note Vote 1 Rusty2 its a Dog of a party for all informal people.

  16. Miriam English

    Just when I was beginning to think Labor was becoming trustworthy again.

    We all knew the fascist LNP was completely untrustworthy and that this is exactly the sort of vindictive crap we should expect from them, but I’ve now lost any residual trust I had in Labor. How the hell could they support the stinking shits in the government on this? Bastards!

  17. win jeavons

    Is it still possible to undermine confidence in ANY government department now ? I can’t see how.

  18. Pingback: “Belief” is not enough to justify legislation to reveal private data – » The Australian Independent Media Network – Papuq's Snippets

  19. Maeve Carney

    “We have a government that has to be warned not to interfere with witnesses in a Senate inquiry. Think about that.” The more I think about it, the more scared I get.

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