Personal information and information exchange

Disclosure of personal information

Information exchange

10.29 Child support legislation requires that the CSA disclose information about one party to the other party at certain stages of a child support case. A key point at which the CSA is required to exchange personal information is when making a child support assessment. Pursuant to s 76 of the Child Support (Assessment) Act, the CSA must give both parties written notice of the assessment, and must specify matters such as income, the number and age range of any dependent children, and the number and age ranges of any other children for whom a party pays or receives child support.^[30]

10.30 In addition to this legislatively required content, child support assessment notices include ‘all the information input to the assessment as well as an explanation of the formula used for calculation’.^[31] The assessment notices also include parties’ names, as discussed below. An example assessment notice is available on the CSA website.^[32]

10.31 Child support assessment notices were criticised in a review in 2010 (the Richmond Review), which stated that they are ‘overly complex’, and feedback from staff and stakeholders ‘suggests that this confuses and overwhelms customers’.^[33] The Richmond Review recommended that the CSA simplify assessment notices—while complying with legislative requirements—by reducing the complexity and the amount of information required.^[34] The ALRC understands that the DHS and the CSA have completed a review of child support assessment notices in 2011.

10.32 Personal information is also exchanged during a change of assessment (departure determination) procedure.^[35] Section 98G of the Child Support (Assessment) Act provides that the CSA must forward copies of application and response forms and supporting documents to the other party,^[36] except where they contain offensive content, as discussed below. Similarly, s 98N of the Act requires that a party’s reply to CSA-initiated change of assessment be served on the other party. Other circumstances which require information exchange include objections to CSA decisions,^[37] and applications for Social Security Appeals Tribunal review.^[38]

10.33 The purpose of information exchange is to ‘ensure procedural fairness (ie, a fair and reasonable decision making process)’. ^[39] The Procedural Instruction, Change of Assessment,states that customers ‘have the right to understand, and have input to, decisions that affect them’.^[40] Generally, parties are provided with the information the CSA uses to make a decision, and have the right to challenge the outcome if they think it unfair or incorrect.^[41]

10.34 There is a tension between concerns for the safety of family violence victims and requirements of procedural fairness in relation to information exchange. Providing one party’s personal information to the other party may have a detrimental effect on victims of family violence. Victims have reported resentment at ongoing disclosure of personal financial information.^[42]

10.35 Information exchange may also affect the safety of victims, particularly when they are unaware that information provided to the CSA will be provided to a person who has used violence. However, Change of Assessment provides that exchange of information should be explained to customers and include the following points, among others:

• all information (except [Tax File Numbers], non carer parent financial information and where family violence has been indicated) our customers provide on their application form and in accompanying documents will be sent to the other customer;

• it is the customer’s choice what they include in their application and supporting documents;

• if a customer does not want the other customer to receive specific information they must not include it in their application (blue pages [pages forwarded to the other party]) or supporting documents;

• customers have the opportunity to comment on or correct information provided by the other party;

• the decision will be based on information that was made available to both customers. This means that any information that the customer decides not to include in their application or to obscure from the supporting documents, will also not be considered by [the CSA].^[43]

10.36 Improving and limiting information exchange is an issue that has been subject to review. As noted in Chapter 9, the Richmond Review in 2010 pointed out that the CSA ‘has in train a program of reforms aimed at addressing both legislative and non-legislative [Change of Assessment] issues’. The objectives include improving ‘the exchange of information between the parties to only that of relevance to the decision’ in relation to departure determination procedures.^[44] The ALRC also understands that ongoing reviews by FaHCSIA, DHS and CSA are considering the issue of information exchange in departure determination procedures, insofar as this is consistent with the requirements of procedural fairness.^[45]

Parties’ names on assessment notices

10.37 While it is not required by the Child Support (Assessment) Act, the CSA includes parties’ names on assessment notices.^[46] The inclusion of names on assessment notices may put victims of family violence at risk where they have changed their names to escape family violence.

10.38 The Procedural Instruction, Customer Update and Exchange of Personal Information,addresses this issue.^[47] It notes that there are three fields available to CSA staff when updating a customer’s name. One of the fields is the customer’s ‘legal name’, which is the name generally recorded and used by the CSA, and automatically used in assessment letters and notices. It states:

When a customer advises of a new name, they must be told that the [CSA] will use their new name when conducting administrative actions—including letters to the other party. The exception to this is where there is evidence of domestic violence and this is the reason for the parent changing their name.^[48]

10.39 Customer Update and Exchange of Personal Information states that where a customer has changed his or her name to avoid violence or threat of violence, staff should not update the customer’s legal name.^[49] This is presumably to avoid the new name appearing on correspondence to the other party, including assessment notices.

Submissions and consultations

10.40 In the Child Support Issues Paper, the ALRC asked what reforms—if any—are necessary to protect the safety of victims of family violence, where the CSA discloses information about one party to another in accordance with child support legislation.^[50] The ALRC also asked whether legislative changes are required^[51] and indicated that any reforms must also conform to principles of procedural fairness.^[52]

Information exchange

10.41 The distress caused to victims by the disclosure of personal information was illustrated in case studies provided by AASW. One customer had raised privacy issues:

B stated that once she was granted an exemption she obtained a level of privacy that was not available to her when she was ‘forced’ to engage with CSA. B states, ‘Getting an exemption from Centrelink meant I had privacy. Anything done with CSA is open and shared material’^[53]

10.42 In another AASW case study, ‘P’ stated that ‘while you remain in the system he has access to all your financial information. This is violating.’ The Ombudsman noted that the furnishing of private information to the other party in child support cases is a ‘common feature of complaints to our office’.^[54]

10.43 The Australian Domestic and Family Violence Clearinghouse (ADFVC) called this a ‘vexed issue’. Some victims in the ADFVC study were ‘extremely concerned about their ex-partner having access to any personal information about them’; conversely, victims may benefit from having access to the other parties’ information, which allows them to challenge income statements and child support assessments.^[55]

10.44 The Sole Parents’ Union considered that a victim’s personal information should not be provided to a person who has used family violence.^[56] The ADFVC similarly argued for a ‘differentiated’ approach for customers who have disclosed violence, whereby their personal information ‘should remain confidential for safety reasons—in particular, any information that could identify their location’.^[57]

10.45 The Sole Parents’ Union and the National Council of Single Mothers and their Children (NCSMC) made arguments to the effect that safety should be prioritised over procedural fairness.^[58] National Legal Aid commented on the ‘tension between the requirements of natural justice and the protection of personal information’.^[59] It stated that:

Information about parents’ incomes, relevant dependent children and the recorded level of care are integral components of the formula and should be recorded on the assessment. However, clients do express concerns that information provided to the other party is often the impetus for comments, criticisms and generally antagonises already strained relations.^[60]

10.46 In particular, concerns were raised about information exchange in departure determination procedures.^[61] A confidential submission stated:

You have to give all of your details and your ex gets to see them—this is incredibly prohibitive for women trying to protect their children’s location, etc, from a violent ex—transparency can equal loss of life—therefore I believe many mothers choose to live in financial hardship such as I have.^[62]

10.47 The NCSMC and the Council of Single Mothers and their Children (CSMC) also commented on the deterrent effect of information exchange in departure determination procedures.^[63]

Parties’ names on assessment notices

10.48 The Ombudsman raised the issue of CSA practice of including the current legal names of both parties on notices of assessment, although this is not required by the Child Support (Assessment) Act. They noted that, where ‘a victim of family violence has changed their name in order to escape a perpetrator, they will obviously not want their new name included on notices of assessment sent to that person’.^[64] They questioned whether, in the absence of a legislative requirement,

it is strictly necessary to include the full legal name of both parents. It might be possible to refer to the parties in a different way, such as ‘you’ and ‘the other parent’, or the ‘mother’ and ‘father’ of the named children. This could still meet the requirements of s 76 and also provide a measure of privacy for a person who fears family violence.^[65]

ALRC’s views

Information exchange

10.49 Disclosure of information in accordance with legislative requirements and CSA procedure may cause distress to family violence victims, and potentially deter them from applying for child support, objections, or applications to change child support assessments. However, procedural fairness requires that certain relevant information must be exchanged, including information relevant to child support assessments and to potential departures from assessments.

10.50 The ALRC considers that a possible way to address this tension is to limit the information that is subject to exchange. For example, in departure determination procedures, the CSA could extract relevant material for information exchange, rather than exchanging entire forms with supporting documentation. This position is consistent with the recommendations of the Richmond Review.

10.51 As noted above, FaHCSIA, the DHS and the CSA are reviewing information exchange in departure determination procedures. In these circumstances, it is unnecessary to duplicate the recommendations of the Richmond Review. However, the ALRC notes that an amendment to s 98G of the Child Support (Assessment) Act—and perhaps also s 98N—may be required to streamline information exchange in change of assessment proceedings.

Parties names on assessment notices

10.52 As described above, the CSA has procedures in place to protect persons who change their names to avoid violence. However, it is possible that victims of family violence will not always disclose family violence to the CSA and advise that this is the reason prompting the name change. In these circumstances, the CSA will include the victim’s name on assessment notices sent to the other party.

10.53 The ALRC is interested in hearing from stakeholders whether current CSA procedures are sufficient to protect victims of violence, or if the CSA should review the assessment notice so that they do not include parties’ names—referring instead, for example, to the ‘mother’ and ‘father’ or ‘you’ and ‘the other parent’.

Offensive content

Background

10.54 The Child Support Guide provides that the CSA may refuse to make a decision in relation to an application for a change of assessment where the application includes ‘obscene or otherwise offensive material’.^[66] The CSA will not forward the form to the other party in these circumstances. Instead, it will ‘contact the applicant and give them an opportunity to re-submit the application and supporting documents, without the offensive material, if they choose to’. ^[67]

10.55 Similarly, the CSA will not forward a response form containing obscene or offensive material to the other party, and the CSA will give the respondent the opportunity to resubmit the form without the offensive material. ^[68] This process also applies to objections.

10.56 A senior officer determines whether the application is ineligible due to offensive content.^[69] The Procedural Instruction, Change of Assessment, provides that, while the decision about whether material is offensive is ‘necessarily a subjective one’, the following principles apply:

• Obscenities directed at the other parent should be considered to be ‘offensive’.

• Comments that are merely impolite (e.g. ‘She is a liar’) are not considered ‘offensive’.

• Comments directed at the [CSA] would generally not be considered sufficiently offensive to invoke this policy.^[70]

10.57 Change of Assessment also provides that where ‘written correspondence contains threats of harm (implied or overt)’ CSA staff are to immediately refer it to a Team Leader.^[71] The procedures discussed below regarding reporting threats apply to these circumstances.

Submissions and consultations

10.58 The Ombudsman and the NCSM both raised concerns about offensive content in change of assessment forms. The Ombudsman provided a case study entitled ‘CSA in the middle’ to illustrate how CSA procedure may make the CSA a ‘conduit for family violence’.^[72]

10.59 The Ombudsman suggested procedures that ‘do not tolerate violent behaviour’ and considered that the agencies should ‘communicate clearly to parties at fault that such behaviour will not be accepted’.^[73]

10.60 The NCSMC also criticised CSA procedures in removing abusive language from forms before forwarding to the other party. It argued that a form that contains such material and requires modification by the CSA should not be accepted and consequent delays should not affect the other party.^[74]

ALRC’s views

10.61 The information about CSA’s procedures for offensive material provided in the Child Support Guide and in the Procedural Instruction, Change of Assessment,is different from the accounts provided by NCSMC and the Ombudsman. Perhaps the CSA’s procedures have been subject to change—as noted in the Ombudsman’s case study, the CSA undertook to develop new policies and procedures in this area, and the Child Support Guide outlining change of assessment process was updated on 4 July 2011.

10.62 The CSA’s current procedures seem to address most of the issues raised by the Ombudsman and NCSMC. However, the ALRC has some remaining concerns. Persons who use family violence may include offensive content on CSA change of assessment forms with the intent to harass, intimidate or offend the other parent—particularly because these forms are generally forwarded to the other parent. Such conduct may constitute family violence. Victims of family violence may therefore need to know about offensive content on CSA forms as it can indicate that they need to take steps to ensure their safety.

10.63 Where state and territory family violence protection orders are in place, offensive content on child support forms may be relevant, because such conduct may constitute a breach. Further, the offensive material may constitute supporting evidence in an application for a family violence protection order, or an application to extend an existing family violence protection order.

10.64 In addressing this issue, competing objectives require consideration. On the one hand, the CSA should avoid acting as a ‘conduit of family violence’ by forwarding forms containing offensive material to a victim. On the other, victims should be provided with information about offensive material so they can take necessary protective steps to ensure their safety, if necessary. Due to this inherent tension, instances of offensive content on CSA forms require a careful and considered response from the CSA.

10.65 The ALRC considers that, when a senior officer determines that content on a form is offensive, he or she should also consider if the other party should be notified in relation to the offensive material. Factors to consider may include, for example, whether the offensive material may constitute harassment of the other party, or whether there is a safety concern flag marked on his or her file. If the CSA decides to inform the other party, it should provide him or her with a copy of the offensive material upon request.

10.66 Consistent with current CSA procedure, the ALRC does not consider that forms containing offensive material should be considered by the CSA in relation to departure or other proceedings.

Restricted Access Customer System

10.67 The personal information of all CSA customers is subject to privacy and secrecy provisions. The Child Support Guide provides that the CSA may ‘provide an additional level of protection to customer information’ where the unauthorised disclosure of, or access to, the information could cause ‘personal harm’.^[75] This additional level of protection is known as the Restricted Access Customer System (RACS). A RACS classification means that the person’s information is placed under higher security and the number of CSA officers who may access the information is limited. This means that RACS-classified customers ‘may experience some short delays in having CSA respond to telephone and written enquiries’. ^[76]

10.68 The Child Support Guide provides that where the CSA identifies a person as being at risk of family violence, and considers that increased security is warranted, the case will be referred to an authorised RACS coordinator.^[77] The Common Module—Family Violence provides that, where a customer is experiencing family violence, staff should discuss referring the case to a RACS co-ordinator with their Team Leader. It states that customers should not be advised if a referral is made.^[78]

10.69 In considering whether to subject a person’s information to the RACS, the Child Support Guide provides that CSA may consider the person’s requests, as well as ‘any special protection’ provided by other government agencies for the person’s information.^[79]

Submissions and consultations

10.70 In the Child Support Issues Paper, the ALRC asked whether the personal information of persons at risk of family violence is adequately protected by Child Support Agency practices, such as the RACS. It also asked whether the protection of personal information could be improved.^[80]

10.71 Several stakeholders commented that existing procedures work well in protecting personal information.^[81] The Law Council commented on the need for ‘significant care’ to be exercised where information about family violence is collected.^[82] The ADFVC stated that it supports the application of the RACS classification to all customers who disclose risk of family violence.^[83]

10.72 National Legal Aid considered that if the RACS process is to be used generally for family violence victims, the ‘CSA will need to expand the number of staff who have access to it’. It noted that

In one case when acting for a customer on restricted access, some experience of unreturned calls and information not being provided was experienced.^[84]

10.73 The Ombudsman provided the following case study about Ms PP, who complained of the CSA’s failure to respond to family violence issues in her case. Ms PP said she had told the CSA about threats and abusive behaviour from her partner, Mr QQ. When making elections to opt out of CSA collection, she also advised the CSA that she did so for her own safety, as Mr QQ was being abusive about child support.

10.74 The Ombudsman used this case study as an example of complaints that suggest that ‘the CSA does not possess the necessary expertise to determine when family violence is occurring and when special measures should be put in place on a particular case’.^[86]

ALRC’s views

10.75 Information about RACS should be provided to persons who disclose family violence as part of the information provided to customers routinely about family violence. This should include that, while it plays a part in a protective response, the purpose of the RACS is not personal protection but protection of information.

10.76 In relation to the Ombudsman’s concerns about CSA staff’s ability to determine the suitability of a RACS classification, the ALRC would be interested in comments about whether a RACS classification should be available upon request.

10.77 Such a reform may have resource implications, as the number of CSA staff with RACS access, while necessarily limited, may need to increase to deal with a corresponding increase in RACS classifications. It might also undermine the integrity of the process—given the necessarily restricted staff members who may access RACS-classified files. An alternative reform would be for RACS classifications to be granted upon a Centrelink social worker’s recommendations.

10.78 These alternative proposals would be complemented by the proposals made in Chapter 4, in particular proposals about providing information, screening, safety concern flags, information sharing, and referrals to Centrelink social workers when customers disclose family violence.^[87]

Reporting threats

Background

10.79 The secrecy provisions in the child support legislation allow the CSA to disclose a threat made against a person to the CSA, where it is a ‘credible threat to the life, health or welfare of a person’.^[88] To disclose the threat, the CSA must also

• believe ‘on reasonable grounds that the communication is necessary to prevent or reduce the threat’;^[89] or

• have reason to suspect the threat is evidence that an offence may be, or has been, committed, and communicates the information for the purpose of ‘preventing, investigating or prosecuting’ the offence.^[90]

10.80 CSA’s internal corporate guideline, Security Incident Management,^[91] provides steps for identifying and managing threats against a customer, among other security incidents. Steps include identifying and clarifying a threat, collecting information and risk assessment.^[92] The risk assessment—conducted by the team leader—will generally determine whether police are contacted.^[93] However, police must be contacted where there is a family violence protection order in place against the threatened person.^[94]

10.81 CSA procedure is also described in the Child Support Guide—including the referral of the threat to a senior officer for consideration of a police report. The Child Support Guide provides that the CSA will generally advise the threatened person of the threat, and ask whether he or she wants the CSA to make a report.^[95] The CSA will also disclose the threat ‘in order to talk to the payee about appropriate future collection activities’.^[96]

10.82 The Child Support Guide notes that it is not a legislative or policy requirement for the CSA to consult the threatened person before reporting the threat to the police.^[97] The CSA will report a threat without consultation when it considers that there is an ‘immediate or urgent need to prevent an offence’.^[98] In addition, the CSA may report a threat to the police against the wishes of the threatened person if the threat is serious.^[99]

Submissions and consultations

10.83 In the Child Support Issues Paper, the ALRC asked how well this system works in practice to protect victims of family violence. It asked whether victims of family violence are adequately protected by the CSA’s procedures to deal with threats against the victim made to the CSA.

10.84 National Legal Aid reported its support for the CSA’s approach, stating that the CSA does take threats seriously.^[100] The ADFVC also supported the existing approach, but lacked information about how it works in practice.^[101] Bundaberg Family Relationship Centre stated that CSA staff should be required to report threats to the police and child protection agencies.^[102] Another stakeholder stated that the CSA should be required to consult the threatened person ‘unless there is immediate or urgent need to prevent a life threatening offence’.^[103]

ALRC’s views

10.85 The CSA’s existing procedures appear to provide for a considered and careful response to threats of family violence. The general practice articulated in the Child Support Guide of consulting with a threatened person prior to reporting to police appears appropriate, as does the requirement to report where there is an immediate or urgent need to prevent an offence, or where a family violence protection order is in place.

10.86 Where a person makes threats against another party’s life, health or welfare to the CSA, the CSA should mark the threatened person’s file with a safety concern flag. The threatened person should also be referred to a Centrelink social worker for referrals to services, including legal services, which may assist in addressing safety concerns. This would enable social workers to discuss options such as family violence exemptions (where the threatened person is a payee), and case-management responses that may be put in place to improve safety.