Labor-commissioned legal advice says it is “reasonably clear” that the government committed a criminal offence when it released the personal details of welfare recipient Andie Fox.
The opposition recently engaged one of Australia’s leading criminal barristers, Robert Richter, QC, to consider the release of Fox’s protected information by the office of human services minister, Alan Tudge, in February.
Fox had been publicly critical of Centrelink and its handling of her welfare debt, and the release of her information was done to counter her claims.
Richter’s advice suggests releasing Fox’s personal information to “set the record straight” was unlawful, although he notes he did not know precisely what was released and by whom, and said the allegations would still need to be proven beyond reasonable doubt in court.
“It is reasonably clear that the minister or one of his office’s staff has committed an offence,” Richter wrote.
“The disclosure of Fox’s information would be punishable by up to two years imprisonment if proven in court.”
But Tudge has rejected the advice, saying Richter provided it without full knowledge of the circumstances of the case. He said he received advice that Fox’s material could be released from the department’s chief legal counsel, who had intimate knowledge of the circumstances and relevant law.
“The hypocrisy of Labor is once again on show – they’ve spent the past two months parading the private details of people with Centrelink debts in the media, even though they admit that they didn’t know if their information was true,” Tudge said.
“Labor would like to be able to spread lies about government agencies and give no opportunity for the government to correct the record,” he said.
The Australian federal police are still considering whether to investigate the government’s release of Fox’s protected information.
Fox had written about her experience in dealing with a Centrelink debt in an article in Fairfax Media, and Tudge’s office was later approached by a Canberra Times columnist, Paul Malone, for a response to her claims.
Tudge’s office released her personal Centrelink details to Malone, which are protected under social security law, to prove Fox’s claims were inaccurate.
The protected information of welfare recipients can only be provided in limited circumstances, and inappropriate release is a criminal offence punishable by up to two years.
There is a broad exception that allows protected information to be released if it is authorised by the secretary of the Department of Human Services in a formal certificate.
That was not done. Instead, the government says it relied on another provision, which allows for protected information to be released “for the purposes of the social security law”.
The government says that allowed it to release Fox’s personal information to maintain confidence in the social security system, but others say that is a broad and untested interpretation of the law.
“A prominent column in the Fairfax papers was published making a number of false allegations, including that the writer was ‘terrorised’ by Centrelink and barred from receiving payments,” Tudge said.
“In such cases, social security law allows the release of select information for the purpose of correcting the record,” he said.
“The select information was provided to journalists on request to check the veracity of the allegations. It has not been released publicly.”
But Richter’s advice suggests the release was unlawful without the “requisite action by the secretary”.
“It seems clear to me that the disclosure of the information ‘to set the record straight’ is not a permitted purpose absent the requisite action by the secretary,” he said.
Labor’s Linda Burney released Richter’s advice on Monday.
“This advice is damning. The prime minister needs to seriously consider whether minister Tudge can remain in his position,” Burney said.
“It appears his position has become increasingly untenable,” she said.
The minister’s office and the department of human services both sent Malone an email containing limited detail on Fox and her personal history. Tudge’s office also attached two PDFs, which were marked “for official use only” and contained some additional detail on Fox’s personal tax and relationship circumstances.
No mention was made of those two PDFs when the government was questioned about the release at senate estimates last month. The government says the contents of the PDFs had been cleared for public release and that there had simply been a mistake in attaching them in that format.
Richter is a well-known criminal barrister based in Melbourne. He successfully defended Mick Gatto on a murder charge, and represented Hoddle Street killer, Julian Knight. His advice is set out in a five-page document, also signed by lawyer Matthew Albert.