Report by the Privacy Commissioner to the Ministers of Justice and Social Services pursuant to section 19(2A) of the Social Welfare (Transitional Provisions) Act 1990 in relation to the mutual assistance provisions in the revised reciprocity agreement on social security between New Zealand and Australia
The Social Welfare (Transitional Provisions) Act 1990 empowers the Government to enter into reciprocity agreements for mutual assistance on social security with foreign governments. The Act also empowers the Government to enter into transborder information matching programmes in support of these agreements.
The Government has entered into an Agreement on Social Security with the Government of Australia and in support of this Agreement has also completed an Administrative Arrangement and a Supplementary Administrative Arrangement. The Agreement provides for information to be exchanged in relation to periods of residence and changes in circumstances. The purpose of these matches is to ensure that beneficiaries are paid their correct entitlements, that they claim entitlements in the other and if possible, in third countries, and to recover debts owed by a beneficiary resident in one country and due to the other country.
The Privacy Commissioner is satisfied that the proposed Agreement complies with the privacy principles set out in the Privacy Act 1993 having regard to the information matching guidelines and rules.
However, with respect to the adequacy of the privacy protection given in Australia to information about any individual that may be supplied by New Zealand under the Agreement, I conclude that the standard of privacy protection is not adequate in that there is no enforceable correction right for New Zealand citizens outside Australia, under the current Australian Privacy Act. In light of my belief that the Australian privacy law will be amended before too long I believe that an assurance from Centrelink that it will deal with any requests for correction from New Zealand citizens as if they were enforceable requests for correction under Australian law will suffice in the interim. In addition I consider that Centrelink should provide a means for impartial review, in the event that any request for correction is denied.
1. STATUTORY AUTHORITY AND INTRODUCTION
2. THE AGREEMENT ON SOCIAL SECURITY BETWEEN
AUSTRALIA AND NEW ZEALAND DONE AT CANBERRA,
28 MARCH 2001
3. THE PERIODS OF RESIDENCE MATCHES
3.4 The 10% Sample Match
3.5 Ad hoc Requests to Verify Residence
3. THE CHANGE IN CIRCUMSTANCES MATCHES
4. INFORMATION MATCHING GUIDELINES
4.1 Guideline (a)
4.2 Guideline (b)
4.3 Guideline (c)
4.4 Guideline (d)
4.5 Guideline (e)
4.5.1 The 10% Sample Periods of Residence Match
4.5.2 Change in Circumstances Match
4.6 Guideline (f)
5. ADEQUACY OF PRIVACY PROTECTION IN AUSTRALIA
6. PART X ISSUES
7. SUMMARY OF CONCLUSIONS
Appendix 1 Social Welfare (Transitional Provisions) Act 1990 provisions
Appendix 2A Diagram of Periods of Residence 10% Sample Match
Appendix 2B Diagram of Periods of Residence Ad Hoc Request Match
Appendix 3 Diagram of Change in Circumstances Match
Appendix 4 Application of Privacy Act Provisions in the Social Welfare (Transitional Provisions) Act 1990
1. STATUTORY AUTHORITY AND INTRODUCTION
1.1 The Social Welfare (Transitional Provisions) Act has established a framework for giving effect to new reciprocal social security agreements and information matching programmes between the Ministry of Social Development (MSD) and its overseas counterparts. Specifically, s.19 (1) of the Act provides that:
'For the purpose of giving effect to any agreement or Convention with the government of another country providing for reciprocity in respect of matters relating to social security monetary benefits, or to any alteration thereto, the Governor General may, by Order in Council,-
'(a) Declare that the provisions contained in any agreement or Convention or alteration thereto set out in a Schedule to the Order in Council shall have force and effect so far as they relate to New Zealand:
'(b) Declare that the provisions of this Act and of the Social Security Act 1964 and of Part 1 of the New Zealand Superannuation Act 2001 and of the regulations and orders in force under those Acts shall have effect subject to such modifications as may be required for the purpose of giving effect to the agreement or Convention or alteration thereto:
'(c) Revoke any previous Order in Council which applied in respect of any such agreement or Convention which is no longer in force or which is intended to be no longer in force on the commencement of the Order in Council.'
1.2 Section 19 (2A) further states:
'If an agreement or Convention or alteration to an agreement or Convention contains a provision of the kind referred to in section 19A(2), no Order in Council in respect of that agreement or Convention or alteration may be made under subsection (1) unless the Privacy Commissioner has first presented a report to the Minister and to the Minister of Justice on the following matters:
(a) whether the provision complies with the privacy principles set out in the Privacy Act 1993, having regard to the matters set out in paragraphs (a) to (f) of section 98 of that Act:
(b) if the provision is of the kind referred to in section 19A(2)(b), the adequacy of the privacy protection given in the other country to information about any individual that may be supplied by New Zealand under the provision.'
1.3 I am aware that the Social Welfare (Transitional Provisions) Act 1990 is to be further amended by the Social Welfare (Transitional Provisions-Overseas Pensions) Amendment Bill which is due to be enacted in the week commencing 22 April 2002. This Bill has the following effects as far as the sections relating to the information exchange are concerned:
(a) Adding to s.19C(1)(c) the words 'or border control'. This extends the range of information that may be exchanged,
(b) Adding to 19D new subsections (4A), 4(B) and (4C). These new subsections will allow the responsible department to give notice of adverse action and proposed adverse action when information is first exchanged and matched with the overseas country, rather than on the occasion of each exchange and match of information under the agreement1
(c) Adding two new sections (280A and 280B) to the Customs and Excise Act 1996 that authorise the disclosure of arrival and departure information by the New Zealand Customs to the MSD
(d) Amending the Third Schedule of the Privacy Act to include a reference to the new s.280B of the Customs and Excise Act 1996, thus making that disclosure an authorised information matching programme.
2. THE AGREEMENT ON SOCIAL SECURITY BETWEEN AUSTRALIA AND NEW ZEALAND DONE AT CANBERRA 28 MARCH 2001
2.1 'The Government has signed a new social security agreement with Australia, which is scheduled to come into effect on 1 July 2002. The agreement sets out arrangements for the cost-sharing of payments to the elderly and people with severe disabilities who have lived on both sides of the Tasman during their working lives. A complex system of data exchange will be required to give each Government the information it needs to successfully operate the agreement.'2 This agreement is to be brought into effect by Order in Council.
2.2 This report is made pursuant to s.19(2A) of the Social Welfare (Transitional Provisions) Act 1990 which requires me to evaluate the proposed Order in Council against the information matching guidelines and rules, and to assess the adequacy of the privacy protection given in the other country to information about any individual that may be supplied by New Zealand under the provision.
2.3 While I have not yet received a copy of the proposed Order in Council, my officers have been working closely with the officials of International Services of the MSD on the compilation of the documents that will form a part of that Order. These are:
(a) Agreement on Social Security between the Government of Australia and the Government of New Zealand, signed in Canberra on 28 March 2001 (the 'Agreement');
(b) Exchange of Notes of 21 February 2002 amending the Agreement;
(c) Administrative Arrangement for the application of the Agreement between Australia and New Zealand on Social Security, signed in Canberra on 4 April 2002 (the 'Arrangement');
(d) Supplementary Administrative Arrangement for the application of the Agreement between Australia and New Zealand on Social Security, signed in Canberra on 4 April 2002 (the 'Supplementary Arrangement').
2.4 The other sections of the Social Welfare (Transitional Provisions) Act 1990 that relate to this matter are sections 19A, 19C and 19D and are listed in full in Appendix 1
2.5 Article 18 of the Agreement requires the parties to exchange information that may assist with the verification of periods of working age residence and to communicate all information required:
'(a) to verify that the person in receipt of that benefit is eligible to receive it...;
(b) to verify the amount of benefit payable; and
(c) for the recovery of any social security debt...'
2.6 Section 6 of the Administrative Arrangement specifies how the exchanges of information concerning 'periods of residence and working age residence' are to be managed, while section 13 deals with the exchanges of specified information 'about any individual who is an applicant for, or a recipient of a benefit'. The details as to how this information exchange will operate are further detailed in the Supplementary Administrative Arrangement.
2.7 The proposed information matching programmes are of two types:
(a) verifying periods of residence in either country, and
(b) advising grants of benefits and changes in circumstances of individual clients.
2.8 The change in circumstances matches are:
(a) From Centrelink to MSD to advise of changes in circumstances of recipients resident in Australia,
(b) From MSD to Centrelink to advise of changes in circumstances of recipients resident in New Zealand.
2.9 I first reported to you on 18 April 2001 in relation to the Social Welfare (Transitional Provisions) Amendment Bill in my report entitled 'Mutual Assistance in Social Security: International Exchange of Personal Information'.
2.10 I have used several acronyms and abbreviations in this report including:
- IMPIA - information matching privacy impact assessment
- MSD - Ministry of Social Development
- Customs - New Zealand Customs Service
- DIMIA - The Australian Department of Immigration, Multicultural and Indigenous Affairs
3. THE PERIODS OF RESIDENCE MATCHES
3.1 Under the social security agreement between the two countries entitlement to a benefit or pension, and the rate at which it is payable, is generally dependent on the periods of residence in Australia, New Zealand or a third country.
3.2 The matches proposed are:
(a) Requests from Centrelink to MSD requesting details of periods of residence of an individual in New Zealand where the information supplied in their application is vague, inconsistent or non existent,
(b) Requests from MSD to Customs, to identify periods of residence in New Zealand for individuals requested by Centrelink or by the International Services of MSD on the grounds that the information supplied is vague, inconsistent or non existent,
(c) Requests from MSD to Centrelink requesting details of periods of residence in Australia. These will be:
i. Monthly bulk requests of a random 10% sample of all new applications for Superannuation, Veterans pension and Invalids benefits, and
ii. Individual requests for applicants who have supplied vague, inconsistent or non existent residency information
3.3 Appendix 2A illustrates the process for the 10% Sample match to Centrelink, and Appendix 2B illustrates the Individual Residency Request match, including the matching with the Customs database. This latter match, though an integral part of the matching programme undertaken to support the Agreement on Social Security with Australia, is authorised by s.280B of the Customs and Excise Act 1996 and will be the subject of a separate report under s.13(1)(f) of the Privacy Act 1993.
3.4 The 10% Sample Match
3.4.1 The MSD intends to take a monthly extract of 10% of all persons who have had a New Zealand Superannuation, Veterans Pension or Invalids Benefit application lodged in that month. This match has the intention of 'deriving fiscal benefits from greater cost sharing between Australia and New Zealand relating to New Zealand Superannuation, Veterans Pension and Invalids Benefit' and achieving 'greater compliance with declaring overseas residency'3. The information to be extracted for each client is:
(a) Client identifier (MSD client reference number and Australian customer reference number)
(b) Family name
(c) First name
(d) Other given name
(e) Date of birth
(g) Alias indicator.
3.4.2 This electronic file is encrypted and sent via a secure telecommunications link by MSD to Centrelink. Centrelink processes the entries over the next month by accessing the DIMIA arrivals and departures database via a dedicated terminal located on their premises, entering periods of residence (essentially determined from the records of arrivals and departure dates held) into the appropriate records in the file and returning the file to MSD. MSD will compare the information returned with that already held on their SWIFTT database and if it is the same that is the end of the matter. In the event that the information returned from Centrelink reveals a discrepancy a notice under s.103 of the Privacy Act 1993 will be sent to the beneficiary and an attempt made to reconcile the discrepancy with the beneficiary.
3.4.3 There is no equivalent 10% bulk requests from Centrelink to MSD.
3.5 Ad hoc Requests to Verify Residence
3.5.1 In addition to the 10% sample of applications received there will be ad hoc requests from either party to the other requesting residency verification for individuals where the information supplied in their applications is considered vague, inconsistent or non-existent. In the case of MSD receiving such requests MSD will use the Customs-MSD link as described in the following paragraphs.
3.5.2 In the MSD, requests received from Centrelink and from within International Services of MSD will be referred to an individual officer who has access to and has been specifically trained in the use of an on-line terminal to the NZ Customs database (CUSMOD) who will make the enquiries to establish arrival and departure dates via that terminal. The terminal is to be a Customs service terminal installed at the International Services of the MSD. It will be strictly limited as to the transactions that can be undertaken from it and its operation restricted to those officers specially trained in its use.
3.5.3 After all the arrivals in and departures from New Zealand for that particular individual have been retrieved, this information is printed out and then entered onto the liaison form and, in the case of Centrelink, re-entered into the electronic version of that form and returned to Centrelink via the secure electronic link. In the case of the request having come from International Services of MSD the print out from the Customs terminal is attached to the requesting form and action taken as described in the next paragraph.
3.5.4 MSD compares this periods of residence data against the residence data originally supplied by the person and held on SWIFTT. If they are the same, the liaison form record is destroyed and the matter ended. If the comparison reveals a discrepancy, MSD sends the beneficiary a notice under s.103 of the Privacy Act and attempts to negotiate a resolution of the discrepancy with the beneficiary.
4 THE CHANGE IN CIRCUMSTANCES MATCHES
4.1 This match consists of Centrelink advising MSD (and vice versa) where a beneficiary who is in receipt of both Australian and New Zealand benefit payments undergoes:
(a) Grant of benefit or pension
(b) Change of name
(c) Change in marital status
(d) Death of client or spouse or partner
(e) Change in the number of dependent children
(f) Change of address
(g) Change of bank account details
(h) Change in country of presence
(i) Change of service status (e.g benefit suspended, cancelled, expired, resumed or declined)
(j) Cancellation of service due to the death of the primary client
(k) Change in rate of benefit or pension payable
(l) Change in third country pension (for permanent residents
(m) Accumulation of 10 years residence in New Zealand
(n) Change in residency status in Australia (e.g. SCV holder to Australian PR)
(o) General increase details and rate reviews
(p) Change of income
4.2 Each such notice will be accompanied by the MSD client reference number, Australian Customer reference number, the person's date of birth, the details of the change and the date on which the change is effective.
4.3 Upon the receipt of the first such liaison form the receiving party will record the other party's reference number on their client database and, in the case of the MSD, send the client a notice under the proposed section 19D(4B) advising them of the Australian reference number that has been recorded against their New Zealand benefit or pension record. The notice will also state that in future information advices concerning the changes of circumstances detailed in paragraph 2.6.1 will also be advised in this manner, and that adverse action (such as benefit rate adjustments, suspension and/or cancellation) based on this information may be taken without further notices under the proposed s.19D(4B) being sent. In the event that a person is able to satisfactorily prove that they are not the person referred to in the initial notice then the Australian reference number would be removed from the New Zealand benefit or pension record. In spite of further notices under the proposed s.19D(4B) not being required, the usual letters relating to any changes in the benefit rate or status will still be sent. This match is illustrated in Appendix 3.
5. INFORMATION MATCHING GUIDELINES (Section 98 of the Privacy Act)
5.1 Whether or not the objective of the programme relates to a matter of significant public importance - section 98(a)
5.1.1 The MSD advises that the implementation of the mutual assistance provisions of the revised Social Security Agreement with Australia, of which the periods of residences information matches are an integral part, 'will allow New Zealand to maintain its relations on social security with Australia.' Primarily these matches assist in the proper calculation of benefits that are to be paid to a person by either party that is in large part based on periods of residence in either country.4
5.1.2 The MSD also states that the change in circumstances matches are vital to the implementation of the mutual assistance provisions of the revised Social Security Agreement with Australia, and that this gives New Zealanders greater freedom in deciding where to retire. It also ensures that the New Zealand and Australian Governments equitably share the costs of social security for Australians in New Zealand.5
5.1.3 I conclude that these information matches have as their objectives 'matters of significant public importance'
5.2 Whether or not the use of the programme to achieve that objective will result in monetary savings that are both significant and quantifiable, or in other comparable benefits to society -- section 98(b)
5.2.1 The MSD has estimated that the periods of residency matches will assist in intercepting an additional $5 million in overseas pension payments and thus savings to the New Zealand Government.6
5.2.2 For the changes in circumstances matches the MSD has estimated that this match compared to a manual process would have, in the year ending 1 July 2003, a net present value of $3.1 million7. While I have not been provided with the details of how this was calculated I do conclude that the savings are likely to be significant and are quantifiable.
5.2.3 I conclude that these matches can result in monetary savings 'both significant and quantifiable'.
5.3 Whether or not the use of an alternative means of achieving that objective would give either of the results referred to in paragraph (b) of section 98 - section 98(c)
5.3.1 For the residence matches, the MSD advised that the alternative method of having Customs undertake the matching was considered, but Customs declined to undertake the work.
5.3.2 For the change in circumstances matches, the alternative method of relying on the client to provide the information was considered and discarded for the following reasons:
(a) the client will incur additional compliance costs;
(b) the slower speed of the likely information exchange would result in increased client debt because of larger overpayments
(c) increased likelihood that a client would tell one agency and not the other with the result that their records would not be synchronised
(d) increased staff costs to deal with such advices using a manual system.
5.3.3 In addition the sending of notices every time a change in circumstances was advised was also considered and discarded because of the:
(a) increased size of the likely overpayments due to the delay applying the information required to allow the client to respond to the notice
(b) not insubstantial costs of sending such notices for twice annual Australian rate reviews;
(c) possible impact on exchange rates where there is a delay in applying change of rate information on third country benefits and pensions
(d) increased costs in undertaking two-rate assessments
5.3.4 In the circumstances I do not believe that there is a practical alternative to these information matching programmes.
5.4 Whether or not the public interest in allowing the programme to proceed outweighs the public interest in adhering to the information privacy principles the programme would otherwise contravene - section 98(d)
5.4.1 The MSD concedes that these matches 'may involve a departure from' Information Privacy Principles 2, 10 and 11 (involving respectively the use of personal information sourced from other than the individual concerned, using the information supplied for one purpose for another, and disclosing information to another organisation) but believes that this 'is justified by the public interest'8
5.4.2 I concur with the belief of the MSD.
5.5 Whether or not the programme involves information matching on a scale that is excessive - section 98(e)
5.5.1 The 10% Sample Periods of Residence Match
The number of agencies involved in this match is three: MSD, Centrelink and DIMIA. The amount of information matched is limited to family name, given name and date of birth with passport number being used only to confirm suspected matches. I do not consider this excessive.
5.5.2 Change in Circumstances Match
The number of agencies involved in this match is two: MSD and Centrelink. While the amount of information matched is comprehensive it is limited to that required to determine and pay correct rates of benefit or pension. The total number of beneficiaries resident in New Zealand under the Agreement on Social Security with Australia is estimated by MSD to be 11,450 and 8,700 resident in Australia by the end of the 2004-05 financial year. I do not regard this match to be excessive in scale.
5.6 Whether or not the programme will comply with the information matching rules - section 98(f)
5.6.1 Rule 1 Notice to individuals affected
Clients are advised at the time of applying for a New Zealand benefit/pension that testing for any entitlement to an overseas pension is required and that they may take part in an information matching programme by suitable reminders on the application forms themselves9. MSD has also supplied assurances that 'some form of publicity programme- including brochures, news releases' will be undertaken10.
5.6.2 Rule 2 Use of unique identifiers
Both the Australian and MSD reference numbers are unique identifiers and their use is central to the operation of this match (it is the combination of these two numbers together with the date of birth that are central to the matching algorithm). Thus their use is essential.
5.6.3 Rule 3 On-line transfers
184.108.40.206 The periods of residence 10% sample match involves the transmission of the requests (electronic liaison forms) and the replies in encrypted form via a secure transmission link. The match itself is conducted via an on-line terminal this is undertaken by Centrelink in Australia and thus outside the scope of this report.
220.127.116.11 The change in circumstances match also involves the transmission of the information in encrypted form and via a secure transmission link. However, the matching process itself is a batch process conducted within the MSD's internal systems.
5.6.4 Rule 4 Technical Standards
I have been supplied with a Technical Standards Specifications for both matches as Appendix 1 of the respective Information Matching Privacy Impact Assessments.
5.6.5 Rule 5 Safeguards for individuals affected by the programmes
The procedures that have been supplied to me provide me with assurances that the MSD will make every reasonable effort to ensure that it does not use any information if it has reasonable grounds to believe that the information may be in error.
5.6.6 Rule 6 Destruction of Information
The match documentation advises that the electronic versions of the liaison forms will be destroyed within 60 days of receipt11 and thus well within the constraints imposed by the information matching rules.
5.6.7 Rule 7 No new databank
No new databanks are being established as the result of these matches.
5.6.8 Rule 8 Time Limits
The periods of residence match will be run monthly and the change in circumstances match daily.
6. ADEQUACY OF PRIVACY PROTECTION IN AUSTRALIA
6.1 The match undertaken by Centrelink on the basis of the change in circumstances information supplied by the MSD will have the protection of the Australian Privacy Act 1988. As such the information will have safeguards that are largely the same as those provided by the New Zealand Privacy Act 1993. Indeed, the information privacy principles in the New Zealand Act were closely modelled upon similar principles in the Australian Privacy Act.
6.2 The Australian Privacy Act covers all of the core Commonwealth public sector and, following a recent amendment, also the private sector12. State Government entities are not covered by the Commonwealth Act although some States have their own privacy laws13. However, the proposal does not involve the sharing of information with State entities or private sector entities and therefore my focus has solely been on the adequacy of the privacy protection given by law to information held by Commonwealth agencies. I have received assurances that information supplied to Centrelink under this Agreement will not be further transferred to entities outside the Commonwealth public service.
6.3 While the adequacy of the privacy protection given by the Australian Privacy Act 1988, in respect of its coverage of the Commonwealth public sector, is generally beyond doubt there is one important blemish. This is section 41(4) which states:
'If an act or practice may be an interference with the privacy of an individual solely because it may breach:
(a) Information Privacy Principle 7, or
(b) National Privacy Principle 6, to the extent that it deals with the correction of personal information, or
(c) a provision of an approved privacy code that corresponds to National Privacy Principle 6, to the extent that it deals with the correction of personal information;
the Commissioner must not investigate the act or practice except to the extent that it is an interference with the privacy of one or more individuals each of whom is:
(d) an Australian citizen; or
(e) a person whose continued presence in Australia is not subject to a limitation as to time imposed by law.'
6.4 Information privacy principle 7 in the Australian Act, as with the New Zealand Act, provides the individual right to seek correction of records. In essence, section 41(4) means that a person who is not an Australian citizen cannot effectively enforce their correction rights when they are outside Australia. Indeed, even within Australia it would appear that the rights of foreigners are severely abridged14. It appears that the effect of section 41(4)(b) is that New Zealanders will be denied their rights while they are outside Australia but, like Australian citizens, they can enforce the correction rights while in that country.
6.5 Given the importance of the accuracy of Australian information for the purposes of New Zealanders affected by this programme, whether in New Zealand or Australia, the absence of an enforceable correction right is a problem. In my opinion, Australian law does not provide adequate privacy protection in this regard.
6.6 However, having made that finding I make some qualifying observations.
6.7 First, New Zealand law suffers from a similar, or even arguably more significant, shortcoming. Section 34 of the New Zealand Act provides that an information privacy request may only be made by an individual who is:
- a New Zealand citizen; or
- a permanent resident of New Zealand; or
- an individual who is in New Zealand.
6.8 I have recommended that the standing requirement in section 34 of the New Zealand Act be repealed and this has been accepted by the Government15.
6.9 Second, the shortcoming referred has also been identified by the European Commission in its examination of the adequacy of Australian privacy law. I believe that while there are other more complicated, and controversial, matters at issue between the EC and Australia, that this issue is accepted by the Australian Government as preventing a finding of adequacy and is likely to be addressed at some point in the future by amendment to the Australian Privacy Act.
6.10 The importance of the correction right is such that it cannot be disregarded in any assessment of the adequacy of privacy protection. Reluctantly, I must come to the conclusion that the standard of privacy protection is not adequate. However, given my understanding that the Australian law will likely be amended before too long, it seems to me that it would be sufficient to receive an assurance that Centrelink will deal with any requests for correction from New Zealand citizens as if they were enforceable requests for correction under the Australian Privacy Act. They also should provide a means for impartial review in the event that any request for correction were to be denied. Since the Australian Privacy Commissioner is prevented by law from investigating the matter, Centrelink should offer some alternative arrangement pending possible amendments to the Australian Privacy Act.
7. PART X ISSUES
As I noted in my earlier report the scheme of the then bill was not to apply all of Part X of the Privacy Act directly. I made particular comment on the fact that ss.101 and 102 of the Privacy Act were not to apply16. It is with pleasure that I note that my recommendations were accepted. I have updated the original Appendix 2 (it is Appendix 4 of this report) that shows how the various sections of Part X are applied in the Social Welfare (Transitional Provisions) Act.
8. SUMMARY OF CONCLUSIONS
8.1 With respect to information matching guideline (a) I am satisfied that the information matching programmes relate to a matter of significant public importance.
8.2 With respect to information matching guideline (b) I am satisfied that the information matching programmes can result in monetary savings that are significant and quantifiable.
8.3 With respect to information matching guideline (c) I am satisfied that there is not an alternative method of achieving the objective of the matches that would give the same quantifiable and measurable savings.
8.4 With respect to information matching guideline (d) I am satisfied that the public interest allowing these matches to proceed outweighs the public interest in adhering to the information privacy principles that the programmes would otherwise contravene.
8.5 With respect to information matching guideline (e) I am satisfied that the information matching proposed is not on an excessive scale.
8.6 With respect to information matching guideline (f) I am satisfied that the programmes are to be operated in compliance with the information matching rules.
8.7 With respect to 'the adequacy of the privacy protection given in the other country to information about any individual that may be supplied by New Zealand under the provision' I conclude that the Australian privacy legislation does not provide adequate protection because of the absence of an enforceable correction right available to non Australian citizens outside Australia. As the Australian law is likely to be amended before too long I believe that it would be sufficient for Centrelink to give an assurance that it will deal with any requests for correction from New Zealand citizens as if they were enforceable requests for correction under the Australian Privacy Act. In addition I believe Centrelink should provide a means for impartial review in the event that any request for correction is denied.
B H Slane
18 April 2002
Social Welfare (Transitional Provisions) Act 1990
19A Inclusion of mutual assistance provisions in reciprocity agreement
(1) In this section and in sections 19B to 19D,-
agreement means an agreement or Convention with the government of another country of the kind referred to in section 19, or an alteration to an agreement or Convention of that kind
competent institution means an institution of a party that is responsible for the application of the agreement
party means a government that has entered into an agreement
requested institution means the competent institution of a party to which a request is made by the competent institution of the other party
requesting institution means the competent institution of a party that makes a request to the competent institution of the other party
social security laws, in relation to a party, means the laws of that party relating to social security, including laws relating to taxation or other contribution levied specifically for social security
social security purposes include-
(a) the administration of the social security laws of a party:
(b) the collection of the social security debts of a party:
(c) the maintenance of the social security laws of a party, including the prevention, detection, prosecution, and punishment of offences under those laws:
(d) the enforcement of any social security laws of a party imposing a pecuniary penalty:
(e) the conduct of any proceedings under the social security laws of a party before any court or tribunal.
(2) An agreement may contain-
(a) provision for the governments of New Zealand and the other country to provide each other with assistance in the recovery of social security debts; or
(b) provision for those governments to supply each other with information for social security purposes; or
(c) both provisions described in paragraphs (a) and (b).
(3) No provision of the kind referred to in subsection (2)(a) may be included in an agreement unless it contains the terms and conditions set out in section 19B or terms and conditions to the like effect.
(4) No provision of the kind referred to in subsection (2)(b) may be included in an agreement unless it contains the terms and conditions set out in section 19C or terms and conditions to the like effect.
(5) Nothing in section 19(2A) or this section prevents an agreement containing other provisions for mutual assistance if those provisions are not of the kind referred to in subsection (2).
19C Terms and conditions for exchange of information for social security purposes
(1) The terms and conditions referred to in section 19A(4) are-
(a) a request for information relating to an individual may be made only for social security purposes:
(b) the requested institution of a party may supply to the requesting institution-
(i) such information on the person to whom the request relates as it holds or is lawfully able to obtain; and
(ii) such information on that person as it may obtain from the taxation authorities of that party:
(c) the requesting institution of a party (the requesting party) to whom information is supplied by the requested institution of the other party may supply that information to the taxation authorities of the requesting party for either or both of the following purposes:
(i) making an assessment of the tax due by any person under the laws of the requesting party relating to taxation:
(ii) detecting tax fraud or tax evasion under the laws of the requesting party:
(d) every request for and supply of information made by and to the competent institutions of the parties must be made in terms of an agreement between the competent institutions of the parties that-
(i) specifies the types of information that the competent institutions may supply to each other; and
(ii) limits the supply of information to the types of information specified; and
(iii) subject to subparagraph (iv), in relation to New Zealand, contains, with all necessary modifications, the safeguards required to be set out in an information matching agreement within the meaning of section 99 of the Privacy Act 1993; and
(iv) in relation to New Zealand, requires the information matching rules set out in clause 4 of the Schedule 4 of the Privacy Act 1993, with all necessary modifications, to be applied; and
(v) in relation to New Zealand, has been agreed to by the Privacy Commissioner under the Privacy Act 1993, the Commissioner having had regard to the information matching guidelines in section 98 of that Act:
(e) Subject to paragraphs (b) and (c), any information supplied by a party to the other party must be subject to the same privacy protections as any other personal information obtained under the social security laws of the other party:
(f) no party that receives, under the agreement, personal information about any individual from the competent institution of the other party may supply that information to any other country without the prior written consent of that competent institution or the individual concerned:
(g) a party must supply the competent institution of the other party with any information required by that institution to answer any questions or to make any report or return required by a person or body authorised to monitor compliance with that party's privacy laws.
(2) In relation to New Zealand, section 99(4) of the Privacy Act 1993 applies, with any necessary modifications, to an agreement between the competent institutions of the parties under subsection (1)(d).
19D Actions by chief executive under mutual assistance provisions
(1) Where an Order in Council is made under section 19 in respect of an agreement which contains a provision of the kind referred to in section 19A(2)(a),-
(a) any social security debt of the other country may, in accordance with and subject to the provision and to the extent that it has not been recovered in the other country, be recovered by the chief executive under section 86(1D) of the Social Security Act 1964 as if it were a debt due to the Crown; and
(b) any amount so recovered may, after the deduction of the costs of collection, be paid to the other country without any further appropriation than this paragraph.
(2) For the purposes of subsection (1)(a), a certificate signed by an authorised officer of the competent institution of the other country that the debt is of a kind described in subparagraphs (i) to (iv) of section 19B(1)(a) is, in the absence of proof to the contrary, sufficient evidence of the existence of the debt.
(3) Where an Order in Council is made under section 19 in respect of an agreement which contains a provision of the kind referred to in section 19A(2)(b),-
(a) the chief executive may supply any information in the department's possession about any person to, or receive information about any person from, the competent institution of the other country in accordance with, and subject to, the provision:
(b) the chief executive may from time to time, in accordance with arrangements made in an agreement with the Commissioner of Inland Revenue, supply any information received from the competent institution of the other country to the Commissioner for either or both of the purposes referred to in section 19C(1)(c):
(c) if any information received from the competent institution of the other country under the provision has produced a discrepancy and the chief executive proposes to take action against an individual as a result, the chief executive must give that individual written notice-
(i) specifying particulars of the discrepancy and of the adverse action the chief executive proposes to take; and
(ii) stating that the individual has 5 working days from the receipt of the notice in which to show cause why that action should not be taken:
(d) the chief executive may not take any adverse action against an individual to whom a notice has been sent until the expiry of the 5 working days referred to in paragraph (c)(ii):
(e) sections 100 to 102 and 104 to 106 of the Privacy Act 1993 apply in respect of the provision as if the provision were an authorised information matching programme and the department were the only specified agency involved in that programme.
(4) Nothing in paragraph (c) or paragraph (d) of subsection (3) prevents the chief executive from taking adverse action against an individual if compliance with the requirements of subsection (3)(c) would prejudice any investigation into the commission of an offence or the possible commission of an offence.
(5) Subsections (3) and (4) of section 103 of the Privacy Act 1993 apply to any notice to be given to any individual under subsection (3)(c).
(6) Where the chief executive fails to comply, in relation to any individual, with the provisions of subsection (3)(c), the failure is considered, for the purposes of Part 8 of the Privacy Act 1993, to constitute a failure to comply with the provisions of Part 10 of that Act.
(7) In this section, expressions defined in section 97 of the Privacy Act 1993 have the meanings so defined, with any necessary modifications.
APPLICATION OF PRIVACY ACT PROVISIONS IN THE SOCIAL WELFARE (TRANSITIONAL PROVISIONS) ACT 1990
PRIVACY ACT 1993 SOCIAL WELFARE (TRANSITIONAL PROVISIONS) ACT 1990
New Sections applying to the Privacy Act directly
New Sections substituting for Privacy Act provisions
Section 13(1)(f) Section 19(2A)
Section 66 (1)(a)(iii) Section 19D(5)
Not applied 19C(2)
Not applied 19C(2), Sections 19A(2), (4) and 19CSection 19C(1)(d)(i)Section 19C(1)(d)(ii)
Section 100 Section 19D(3)(e)
Section 101 Section 19D(3)(e)
Section 102 Section 19D(3)(e)
Sections 19D(2)(c) and (d)Section 19D(3)
Section 19D(2)(e)Provision applied directly but with express modification.
1 Social Welfare (Transitional Provisions-Overseas Pensions) Amendment Bill, Explanatory Note, Part 2, Amendments to principal Act and other Acts, PCO4233/3.
2 Ibid, Background, paragraphs 1 and 2.
3 IMPIA: Revised New Zealand -Australia Social Security Agreement-Residency Information Match, section 5.3, page 15. 4 IMPIA Revised New Zealand -Australia Social Security Agreement-Periods of Residence Match, 1 March 2002, page 11. 5 IMPIA Revised New Zealand -Australia Social Security Agreement-Change in Circumstances Match, 1 March 2002, page 29.
6 Ibid, page 16.
7 Ibid, page 20.
8 Ibid, page 24.
9 Ibid, paragraph 1, section 8, page 18.
10 Ibid, paragraph 3, section 8, page 18.
11 Ibid, paragraph 1, section 8.6, page 19.
12 The position with respect to the private sector is rather complicated since there are major exemptions from coverage. Those exemptions themselves are subject to claw-back provisions which bring otherwise private sector businesses back into the scope of the Act. However, the complications in relation to the private sector have little relevance to the matters under consideration. If Centrelink were to use a private sector contractor to perform data matching or processing for it, the Australian Act would almost certainly apply either in terms of provisions concerning outsourced services to Commonwealth departments or through the application of the private sector National Privacy Principles, also contained in the Privacy Act.
13 Currently, New South Wales, Victoria and the Australian Capital Territory.
14 A foreigner who is, for instance, on a permit or visa for visitors, work or students, or indeed illegally in Australia, will be unable to have inaccurate information on Commonwealth files corrected.
15 The Statutes Amendment Bill which was introduced to Parliament with all party support, and reported back favourably from a select committee having received no public submissions in opposition on this point, would have been enacted by now had it not been for opposition from a member of the ACT party.
16 Ibid, section 4, Part X issues.