I was asked to investigate the power of the Department of Social Welfare to invoke section 11 of the Social Security Act to obtain information about job applicants from an employer. The complaint was received from an industry association on behalf of one of its members.

The complainant did not wish to make this information available as it would breach their confidentiality with job applicants. There was also concern that employees and prospective employees would view the complainant as a 'direct line' to the Department of Social Welfare. The complainant considered this use of s.11 was incompatible with the scheme of the Privacy Act. I informed the complainant that it was entitled to enquire whether the request was legitimate and to ask for evidence that the author of the request had been properly delegated to exercise the Director-General's powers under s.11 of the Social Security Act. However, once a request is made by way of formal written notification then the employer has little choice but to supply the information required.

My investigation looked to the terms of the statutory power granted to the Department of Social Welfare by s.11. This provision gives very wide powers to the Department of Social Welfare to require information. The fact that the individual concerned was not an employee of the complainant at the time the Department made its request would not affect its powers under s.11. The collecting of information is not a breach of the collection principles if it is authorised under the Social Security Act (refer s.7(4) Privacy Act). However, to invoke s.11 there must be a notice in writing. My investigation concluded, that in this case the complainant was not obliged to supply the information at issue as the request had not been expressed in mandatory terms.

The Department's response to my finding in this case was to advise me that the matter is being taken up at appropriate levels to ensure that its compliance with s.11 is more thorough.

I concluded my response to the complainant by noting that I wish to monitor the use of s.11 of the Social Security Act.

June 1994

Collecting personal information - Department of Social Welfare - Information about job applicants sought from prospective employer - Social Security Act 1964, s 11 - Privacy Act 1993, s 7

Note: Since this decision was given a review of s.11 was completed by a select committee. Refer Social Services Committee, Inquiry into Privilege Provisions of section 11 of the Social Security Act 1964, House of Representatives, 1994.