The Centrelink fiasco keeps getting worse, writes Ben Eltham. Now the rogue department has leaked private information about ordinary citizens who have the temerity to criticise it.
We need to talk about Centrelink.
We’ve known for months that something is very wrong at the sprawling government payments agency. From the middle of last year, Centrelink has been monstering ordinary Australians with automated “robo-debt” notices, often generated in error.
Tens of thousands of Centrelink recipients have been issued with erroneous debt notices for debts they don’t owe. The misery has been extraordinary. MPs have been besieged with desperate constituents trying to fight the robo-debts, despite official indifference. At least one person with health issues pursued by the agency has committed suicide.
The government maintains that the system is working.
You would think it couldn’t get any worse. But yesterday we found out that it could get worse. That’s when the Department of Human Services calmly admitted that it had released private details of a Centrelink recipient who had written about her debt problems.
Economist and blogger Andie Fox is a thoughtful and respected commentator on social affairs, particularly the intersection of work, feminism and motherhood. So when she penned a nuanced and measured account of her Centrelink troubles for Fairfax Media, people read it.
Fox’s account of her robo-debt issues will be familiar to anyone caught in Centrelink’s maw.
It all started when I began receiving calls from a debt collector, which I initially ignored. I knew I had no debt and that any request for personal details from a stranger was cause for suspicion. But after some time I gave in to the harassment – my curiosity got the better of me, and by then the calls were interrupting everything from work meetings to putting the children to bed.
And that was how I discovered I had a Centrelink debt.
Fox went on to detail a typically nightmarish experience. The debt related to her time with her ex-partner, with whom she had since split. Because he had not filed his tax return for a particular tax year, she was then held jointly responsible for repayments of Family Tax Benefit.
Fox’s article was mainly about the emotional trauma of dealing with Centrelink over a disputed debt, exacerbated in her case by the fact that the debt in question related to her former partner, not herself.
You have to speak quickly. You have to speak loudly, so nothing is missed. There is no other way to put this, you sound nuts. You are literally announcing the wreckage of your life to a complete stranger in a room full of other strangers.
In reply, it was suggested that perhaps the situation could be improved if I were to prove the relationship with my ex was truly over. Being de facto, the end of the relationship had no paperwork to speak on my behalf. I offered to give them my ex’s contact details, but ironically, privacy legislation prevented them from contacting him about either his past relationship or his tax fine, both things I had just been forced to describe at volume to a room full of strangers.
In the end, the Family Tax Benefit dispute was resolved in Fox’s favour. “In the days leading up to Christmas I learned that the board had reviewed its decision, agreed an error had been made, and that my ex’s fine would be cleared from my record,” she records.
But there was a catch. A new debt had now been discovered. Fox was still on the hook, again for a Family Tax benefit debt racked up “in the year my ex didn’t file his tax return.”
Fox’s article was moderate, restrained and careful. She didn’t make wild accusations and was at pains to praise the Centrelink staff that had helped her. She pointed out that contesting a Centrelink debt was both difficult and stressful. As we know, in her first debt matter, Centrelink eventually ruled in her favour. The second is still ongoing, as she explicitly indicated at the end of her article.
Fox’s article was shared widely on social media and referred to on the ABC’s Q&A. That is where it came to the attention of freelance journalist Paul Malone, who writes a weekly column for the Canberra Times.
Malone decided to look into Fox’s case, and wrote to both her and Centrelink about it. And that is where things got interesting.
In response to Malone’s enquiries, Centrelink and the responsible minister, Alan Tudge, decided to brief Paul Malone on Andie Fox’s case.
A more accurate term would be “briefed against” her. All sorts of personal information from Fox’s case file were disclosed to Malone, who duly wrote them up in a lukewarm “gotcha” piece in the Canberra Times article on 26 February. “Could it be that sometimes the agency is being unfairly castigated?” he asked.
What followed was a regurgitation of Centrelink media spin, attributed to Centrelink PR supremo Hank Jongen.
We’ll get to the particulars of this rather shoddy exercise in attack journalism shortly.
But the far more important issue is what this article tells us about the state of privacy regulation in Australia, and the politicisation of the Australian Public Service.
Make no mistake: this was a deliberate act by Centrelink’s spin room, led by Hank Jongen, and okayed by top Department of Human Services brass and eventually Minister Alan Tudge himself.
Tudge even tweeted out a link.
Fairfax acknowledges that Andie Fox did have debt despite publishing her article that Centrelink "terrorised" her. https://t.co/nmacxmIKtc
— Alan Tudge (@AlanTudgeMP) February 25, 2017
How do we know the privacy disclosure was deliberate? The government has told us.
The Department of Human Services told New Matilda that Andie Fox’s case file was indeed briefed to Paul Malone without her knowledge or consent. Moreover, they told us, this was all perfectly legal.
“Personal information obtained about a welfare recipient may be used by the department for social security law or family assistance law purposes,” a spokesperson for the Department told New Matilda, and referred us to Section 202 of the Social Security (Administration) Act 1999 and Section 162 of the A New Tax System (Family Assistance) Administration Act 1999).
“This allows the department to correct the record in cases where a person makes a public statement or complaint about the department’s handling of their welfare payments that does not accord with our records, including via the media.”
Moreover, the Department issued a warning to anyone thinking of discussing their Centrelink issues in the press.
“Unfounded allegations unnecessarily undermine confidence and takes staff effort away from dealing with other claims,” the spokesperson continued. “We will continue to correct the record on such occasions.”
Did Alan Tudge Mislead Parliament?
In Parliament yesterday, Human Services Minister Alan Tudge was asked by Labor about the disclosure. It appears he misled the House.
Tudge claimed that:
… the personal information about welfare recipients may be used by the Department for social security law or family assistance law purposes in order to correct the record. The Social Security (Administration) Act 1999 and section 162 of the A New Tax System (Family Assistance) (Administration) Act 1999 allow the department to correct the record in cases where a person makes a public statement or complaint about the department’s handling of their welfare payments that does not accord with the records which we have, including via the media. As such, disclosure made for the purpose of social security law or the family assistance law does not need to be formally authorised by the secretary.
Tudge was referring to guidelines set down in sections 208 and 209 of the Social Security (Administration) Act. But these guidelines refer to the power of the Secretary of the Department to disclose information. To do so, Secretary Kathryn Campbell would have needed a so-called “public interest certificate.” According to the Department, the Secretary did not use those powers. Nor did she obtain a certificate.
Instead, the Department told New Matilda in a written statement that it relied on section 202 of the Act:
“Disclosing personal information to respond to criticism raised in the media about the treatment of a particular individual is for the purposes of the relevant law, as it is necessary to maintain public confidence in the administration of the law.
As such disclosures are not made under public interest certificates, they do not require formal decisions by the Secretary or a delegate.”
So if Tudge was talking about “correcting the record” he was referring to the wrong section of the Act. Correcting the record under section 209 would need to be formally authorised by the Secretary. Alan Tudge has quite a bit of explaining to do.
So does the Department. Legal scholars now think there is a very real chance that the Department and Alan Tudge broke the law.
According to La Trobe University legal scholar Darren O’Donovan, the legality of the privacy breach is very much open to question.
“I am of the view that a use of section 202 is legally controversial,” he told New Matilda in an email. “If they were permitted to use it that manner it would have very broad consequences for Australian privacy protection. To me, (Peter Sutherland from ANU has also made this point) the use of section 202, without formal authorisation, would be a new departure for the Department.”
The ethics of doxxing a citizen critic
After misleading Parliament, Tudge went on to criticise Labor parliamentarians for encouraging Centrelink clients with robo-debt notices to take their story to the media.
We also know that because the member for Barton has admitted herself that, in all of the cases which the Labor Party has put up to the media, many of them actually have no idea about the veracity of the claims which they are putting up.
And this is what it’s come to. The government has decided to respond to the disaster of its own making at Centrelink by attacking the character of those caught up in the catastrophe. To make things crystal clear, the government has doxxed a critic. The responsible department has warned welfare recipients that it will retaliate if they take their concerns to the media.
In her blog yesterday, Fox wrote that “this has been such a disturbing experience”. She wrote the article, she explained, “with the intention of drawing people’s attention to how impenetrable the debt collection process can be and also, to encourage women to consider fighting against ‘sexually transmitted debt’.”
In response, a glass-jawed Department and its Minister disclosed personal information to a hostile journalist, who attacked her character in the national media.
“Something is going very, very wrong in government policy at the moment,” Fox wrote. It’s hard to disagree.
The episode is sobering for those worried about the amount of data the government collects about private citizens, and the safeguards against government abuse of that data.
The issue is hardly trivial: the Attorney-General’s Department and the government’s intelligence agencies collect vast troves of information from essentially every Australian citizen, through compulsory metadata retention and other forms of official surveillance.
The episode should also raise serious questions about the politicisation of the Department of Human Services bureaucracy.
The aggressive tactics of the DHS spin room, led by Hank Jongen, are an open secret in Canberra. New Matilda has spoken to several sources with working knowledge of the DHS media operation, who have told us that that Jongen’s operation is openly politicised.
Ever since the robo-debt problems began to emerge last year, the DHS media unit has worked to triage cases reaching the media. Journalists asking about the robo-debt bungles were told to refer the Centrelink clients they were in touch with directly with Centrelink, with the aim of cleaning up the cases that reached the media before the broader scandal blew up.
Centrelink’s spinners have aggressively moved to cultivate journalists potentially friendly to their cause. According to sources within Centrelink, the DHS media team were delighted at convincing Malone to write the attack piece on Fox.
In conversation with New Matilda, Malone partly confirmed this. He remarked in a phone discussion that he had originally intended to write a negative piece about Centrelink, but turned the focus of his article around when informed of “the facts”. Malone continues to stand by his article, arguing that “everybody is entitled to a fair and honest account of their activities including government agencies”.
The ABC today reported that Privacy Commissioner Timothy Pilgrim was looking into the case. Perhaps an investigation will be launched. But it seems unlikely much will come of it: in a 2010 ruling, the Privacy Commission sided with Centrelink in a similar case.
A shoddy piece of journalism
What of the merits of Malone’s article? It will scarcely go down in the annals of investigative journalism.
In his article, Malone wrote that:
In her detailed article Ms Fox complained that her problem arose from the fact that she was chased by Centrelink for a debt actually owed by her former de facto partner.
She then detailed the run-around she got trying to resolve the matter.
She says she soon found out that even asking the simplest question about the debt threw her into “a vortex of humiliating and frustrating bureaucratic procedures.”
But Centrelink has a different story.
The agency says Ms Fox’s debt is a Family Tax Benefit (FTB) debt for the 2011-12 financial year which arose after she received more FTB than she was entitled to because she under-estimated her family income for that year.
The original debt was raised because she and her ex-partner did not lodge a tax return or confirm their income information for 2011-12.
Centrelink says that after Ms Fox notified the department that she had separated from her partner, the debt due to her partner’s non-lodgement was cancelled.
Centrelink general manager Hank Jongen says Centrelink made numerous attempts to get in touch with Ms Fox via phone and letter but many of these attempts were left unanswered. Between November 16 and January 17 Centrelink made four phone calls and sent six letters to Ms Fox.
Centrelink says it was not until 2015 that she informed them that she had separated from her partner in 2013.
Malone’s gotcha didn’t add up to much. Essentially the worst that Centrelink could muster when briefing Malone was that Fox had been late in informing Centrelink of her separation, and that Centrelink had tried to reach her, but couldn’t.
Was this really setting the record straight? Or did it merely confirm what Fox had already written?
Indeed, Malone’s own article confirms that Centrelink had eventually agreed, on review, to cancel the first Family Tax Benefit debt – corroborating Fox’s article.
New Matilda approached Paul Malone asking him about the ethics of his article. He stands by it.
“People in government and the bureaucracy have a right to have their side of the story told too,” Malone wrote in an email. “Andie Fox raised her private case herself. She talked in her article about her personal situation, and made claims about her situation and that of her de facto. She can’t have it both ways – going public about her personal matters and then when Centrelink queries her version of events saying it’s a private matter”.
For her part, Fox points out that Malone initially contacted her about the more general issue of “Centrelink debt processes”, but that she “quickly became alarmed when he then abruptly quoted what I thought were confidential parts of my Centrelink file to me and admitted that the article was not in fact about Centrelink debt processes, but rather about my case specifically”.
Fox was in the Kafkaesque situation of talking to a journalist about her own private welfare file. He had details before him that she didn’t.
Fox told us Malone only gave her a few hours to respond to his questions. “He said I had only until overnight to comment before he would file his article…. He appeared naive in understanding the complexity and nuance of Centrelink interactions and processes”. She decided not to tell Malone anything further. Malone went ahead and submitted the piece. He did not point out that Fox had declined to comment for his article.
Whatever the details of his slapdash report, Malone’s attack piece raises all sorts of questions about the state of our civil liberties in 2017.
Are private citizens criticising the government now fair game for official doxxing? Is any mention of a government action in the media enough to justify the disclosure of damaging private information?
And what about the journalistic ethics here? What was the public interest in Fairfax disclosing a private citizen’s welfare details in this way?
As Fairfax’s own code of conduct points out, “We will strike a balance between the right of the public to information and the right of individuals to privacy”. It’s certainly worth questioning whether that balance has been struck.