The legal advice relied upon by Human Services Minister Alan Tudge to support his release of blogger and Centrelink recipient Andie Fox’s personal information to a journalist appears to be missing, despite several attempts to obtain it.

In late February, Fox published a comment on The Canberra Times detailing some of her experiences with with Centrelink’s robo-debt notice debacle. Tudge’s office then gave Canberra Times journalist Paul Malone personal information about Fox’s history with Centrelink and the Tax Office, which formed the basis of an article denying Fox’s original claims. 

Questions remain over whether Tudge’s office acted within the law in disclosing Fox’s private information without her consent. 

[Alan Tudge and DHS think it’s legal to leak private citizens’ details to the press. It isn’t.]

In Parliament in late February, Tudge appeared to quote from legal advice that suggested he was able to disclose the information to correct the record:

“In cases where people have gone to the media, with statements that are incorrect or misleading … we are able to, under the Social Services Act, release information about the person for the purpose of, as I quote, ‘correcting a mistake of fact, a misleading perception or impression, or a misleading statement’.  That is what the law allows.”

But what Tudge quotes does not appear in the Social Services Act. The language appears in 2015 guidelines around section 208 of the Social Security Act, which allows the secretary of the department to issue public interest certificates for the disclosure of private information to correct the record. The department said in Senate estimates, however, that no public interest certificate had been issued, and instead the department was relying on section 202 of the act to release the information. There is nothing in that section of the act to suggest that the government could release Fox’s information.

In media interviews in March, Tudge claimed the chief legal officer of his department had formally cleared him to release the information. But the secretary of his department, Kathryn Campbell, told an estimates hearing that legal advice had not been provided to Tudge:

“I am not sure we would say ‘informal’. I think we would say that the legal advice per se was not provided but that for the policy advice we had legal advice.”

So what advice was the minister relying on? Crikey filed a freedom of information request with the Department of Human Services requesting the document that Tudge quoted from in Parliament. An officer within the Department of Human Services indicated last week the department might refuse the request because the department had no way of knowing exactly what advice the minister was quoting from:

“I am not able to reasonably identify whether or not the Minister was referring to any specific document. The Minister could have been referring to any document, briefing, minutes or notes. In order to identify the document in scope of your request, the department would be required to review every document that has been provided to the Minister or his Office by the department since he commenced in office in February 2016 and determine whether any of those documents contain material quoted by the Minister during the Parliamentary debate on 28 February 2017.”

[Australia, 2017: bureaucrats who see citizens as enemies]

Crikey asked for the department to ask the minister’s office what document exactly he was quoting from, but we have yet to receive a response.

Yesterday, Labor human services spokeswoman Linda Burney released legal advice from prominent Melbourne barrister Robert Richter QC on the matter. Richter said that Fox’s information was protected information, and that it was “reasonably clear” that the minister or one of his staffers “has committed an offence” punishable by up to two years in jail.

“The disclosure of Centrelink clients’ information to ‘set the record straight’ is not permitted under the Act,” Richter said in his advice.

Burney yesterday called on the minister to release the advice he received:

“He keeps talking about some sort of legal advice that gave him the OK to leak this information. No one has ever seen that advice, and in fact his department claims that that advice does not exist.”

The Australian Federal Police also received a referral from Burney to investigate whether Tudge or his office had broken the law in releasing Fox’s personal information. Burney says she understands the AFP is investigating the matter.