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Data-matching Program (Assistance and Tax) Act 1990

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DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20, 1991
DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - LONG TITLE
An Act to provide for the matching of data in relation to certain assistance and tax and to amend the Privacy Act 1988 DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - PART 1 PART 1 - PRELIMINARY
DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 1 Short title
(Assented to 23 January 1991) 1. This Act may be cited as the Data-matching Program (Assistance and Tax) Act 1990. (Minister's second reading speech made in- Senate on 6 December 1990 House of Representatives on 20 December 1990) DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 2 Commencement
2. This Act commences on the day on which it receives the Royal Assent. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 3 Interpretation
3. In this Act, unless the contrary intention appears: "agency" means: (a) the matching agency; or (b) a source agency; "assistance agency" means: (a) the Department of Community Services and Health; or (b) the Department of Employment, Education and Training; or (c) the Department of Social Security; or (d) the Department of Veterans' Affairs; "assisted person" means a person: (a) to whom personal assistance is being, or has been, given; or (b) who is claiming personal assistance; "basic data", in relation to a person, means: (a) the person's family identity data; or (b) the person's income data; or (c) the person's TFN data; "child", in relation to a person, includes anyone who is the person's child for the purposes of any personal assistance or any tax law; "data-matching cycle" means a cycle the steps in which are set out in section 7; "data-matching program" means the program referred to in section 6; "declared income", in relation to a person, means any income, or income of a particular kind, of the person for the purposes of any personal assistance or tax law; "family identity data", in relation to a person, means any of the following data about the person: (a) surname; (b) any other name; (c) initial of any other name; (d) any former surname; (e) any other former name; (f) the initial of any other former name; (g) where the person is alive, current residential address or addresses and any other current address or addresses; (h) an identification number for the purpose of personal assistance; (j) sex; (k) marital status; (m) date of birth; (n) where the person is dead, date of death; (p) surname, any other name, initial of any other name and address or addresses of any living spouse of the person; (q) surname, any other name, initial of any other name, date of birth and date of death of any deceased spouse of the person; (r) surname, any other name, initial of any other name, sex and date of birth of any living child of the person; (s) surname, any other name, initial of any other name, sex, date of birth and date of death of any deceased child of the person; (t) surname, any other name, initial of any other name and address or addresses of any living parent of the person; (u) surname, any other name, initial of any other name, last address and date of death of any deceased parent of the person; (w) kind of personal assistance of the person; "income data", in relation to a person, means: (a) declared income of the person; or (b) declared income of a spouse of the person; or (c) declared income of a parent of the person; or (d) personal assistance of the person; or (e) spouse rebate of the person; "matching agency" means the officers of the Department of Social Security who are referred to in section 4; "officer", in relation to a source agency, means a person with duties,
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powers or functions in relation to an Act matters under which are dealt with by the agency; "parent", in relation to a person, includes anyone who is the person's parent for the purposes of any personal assistance or any tax law; "person" means an individual whether alive or dead; "personal assistance" means: (a) assistance under the First Home Owners Act 1983; or (b) any assistance dealt with by the Department of Employment, Education and Training and known as any of the following: (i) assistance under the AUSTUDY Scheme; (ii) assistance under the ABSTUDY Scheme; (iii) assistance under the Assistance for Isolated Children Scheme; (iv) assistance under the Aboriginal Overseas Study Assistance Scheme; (v) assistance under the Scheme providing living allowances for English as a Second Language; or (c) any pension, allowance or benefit dealt with by the Department of Social Security and known as any of the following: (i) age pension; (ii) invalid pension; (iii) wife's pension; (iv) carer's pension; (v) sole parent's pension; (vi) widowed person's allowance; (vii) widow's pension class B; (viii) sheltered employment allowance; (ix) rehabilitation allowance; (x) unemployment benefit; (xi) job search allowance; (xii) sickness benefit; (xiii) special benefit; (xiv) family allowance; (xv) family allowance supplement; (xvi) child disability allowance; (xvii) double orphan's pension; (xviii) mobility allowance; (xix) remote area allowance; (xx) rent assistance; (xxi) incentive allowance; (xxii) pharmaceutical allowance; (xxiii) pharmaceutical supplement; (xxiv) advance pharmaceutical supplement; (xxv) disaster relief payment; (xxvi) formal training allowance; or (d) any pension, allowance or other benefit or assistance given under the Veterans' Entitlements Act 1986 or the Seamen's War Pensions and Allowances Act 1940; and, in relation to a person, means personal assistance given to, or claimed by, the person; "personal identity data", in relation to a person, means any of the following data about the person: (a) surname; (b) first other name; (c) initial of second other name (if any); (d) current residential address; (e) sex; (f) date of birth; (g) in the case of identity data held by the Australian Electoral Office - the date on which the person's name was placed on a Roll of electors; (h) in the case of data held by the Health Insurance Commission: (i) the date on which the person was last enrolled with the Commission; (ii) the date (if any) on which the person last ceased to be so enrolled; (iii) whether or not the person's Medicare card has been lost, revoked or otherwise removed from circulation; "source agency" means: (a) an assistance agency; or (b) the tax agency; "spouse", in relation to a person, includes anyone who is a spouse of the person for the purposes of any personal assistance or tax law, and marital status has a corresponding meaning; "spouse rebate", in relation to a person, means the dependent spouse rebate of the person within the meaning of the Tax Act; "Tax Act" means the Income Tax Assessment Act 1936; "tax agency" means the Commissioner of Taxation; "tax data" means: (a) tax family identity data; or (b) tax income data; or (c) tax TFN data; "tax family identity data" means the family identity data of persons that is held by the tax agency for the purposes of a tax law; "tax file number" has the same meaning as in Part VA of the Tax Act;
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"tax income data" means the income data of persons that is held by the tax agency for the purposes of a tax law; "tax law" means any law of the Commonwealth relating to taxation; "tax TFN data" means the TFN data of persons that is held by the tax agency for the purposes of a tax law; "TFN data", in relation to a person, means: (a) the person's tax file number; or (b) the tax file number of any spouse of the person; or (c) the tax file number of any parent of the person. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - PART 2 PART 2 - DATA-MATCHING
DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 4 Matching agency
4. The Secretary to the Department of Social Security is to ensure that there are officers of that Department who are responsible for the matching of data under this Act. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 5 Effect of other Acts
5. (1) This Act does not limit the application of other laws of the Commonwealth except to the extent (if any) that they are inconsistent with this Act. (2) Guidelines in force under section 17 of the Privacy Act 1988, in relation to TFN data or tax-file number information are not breached where an agency has complied with the provisions of this Act. (3) Any oath or declaration made by an officer of a source agency in relation to the recording or disclosure of information is not broken by the officer doing anything for the purposes of, and in the course of, carrying out functions or duties under this Act. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 6 Matching of data
6. (1) Subject to subsections (2) and (3): (a) data about persons may be transferred between agencies; and (b) data about persons may be matched or otherwise dealt with by the matching agency or the tax agency; and (c) the results of the matching may be given to source agencies; in accordance with the data-matching program made up of data-matching cycles the steps in which are set out in section 7. (2) There are to be no more than 9 data-matching cycles in any one year. (3) Only one data-matching cycle is to be in progress at any one time. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 7 Steps in data-matching cycle
7. The steps in a data-matching cycle are as follows: STEP 1 1. The assistance agencies give the matching agency the basic data about persons that is held by those agencies for the purposes of personal assistance. 2. The matching agency checks the validity of the TFN data given under paragraph 1 by using any algorithm given to it for the purposes of this Act by the tax agency. 3. Where the check identifies TFN data that is invalid, the matching agency checks that data using any personal identity data given to it for the purposes of this Act by the Australian Electoral Office or the Health Insurance Commission, not being data relating to a person's use of Medicare or the Pharmaceutical Benefits Scheme. 4. Where either of the checks identifies TFN data that appears to be incorrect, the matching agency gives particulars of the data to the source agency that gave it. STEP 2 5. The matching agency extracts from data given to it in Step 1 the TFN data, and any identification numbers for the purposes of personal assistance, of assisted persons. 6. The matching agency gives the tax agency the data extracted under paragraph 5. STEP 3 7. The tax agency uses tax data and data given to it under Step 2 to find out the following available and current data in respect of each person who has a tax file number: (a) tax file number; (b) personal identity data; (c) declared income; (d) spouse rebate. 8. The tax agency gives the matching agency the data found out under paragraph 7 and any identification numbers for the purposes of personal assistance of the person. STEP 4 9. The matching agency carries out identity matching by matching the personal identity data given under paragraph 8 with the family identity data given to it. 10. Where the matching shows a discrepancy in the family identity data or personal identity data of a person, the matching agency matches that data with
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the personal identity data referred to in paragraph 3. 11. Where, after matching under paragraph 10, there is an unresolved discrepancy in data given to the matching agency by a source agency, the matching agency gives the source agency particulars of the discrepancy. STEP 5 12. The matching agency carries out payment matching by matching family identity data given by assistance agencies in Step 1 to find out if personal assistance is being, or has been, given to, or is being claimed by, persons who might not be entitled to it. 13. Where the matching of family identity data given by assistance agencies in Step 1 cannot identify a person for the purposes of paragraph 12, the matching agency matches TFN data given to it inStep 1 with the data being matched under that paragraph. 14. The matching agency carries out income matching of persons by using any identification number for the purposes of personal assistance of a person to match: (a) income data of the person given to it by assistance agencies (other than the Department of Community Services and Health); and (b) except where the matching agency has, under paragraph 11, given particulars of a discrepancy in data about the person to a source agency, the tax income data of the person given to the matching agency in earlier steps; to find out if there are any inconsistencies in the income data of the person. STEP 6 15. The matching agency gives to each source agency the results of matching under earlier steps that are of concern to that other agency and have not been given to the other agency in an earlier step, being results that indicate: (a) in the case of an assistance agency - that personal assistance is being, or has been, given to, or is being claimed by, persons who might not be entitled to it; or (b) in the case of the tax agency - that a person might be evading, or might have evaded, tax. 16. Information exchanged in paragraph 15 must not include the return of TFN data from the matching agency to an assistance agency. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 8 Data not to be sent on-line
8. Data is not to be transferred between agencies in the data matching program by on-line computer connections. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 9 Length of data-matching cycle
9. (1) A data-matching cycle is to be completed no later than 2 months after it began. (2) Step 5 in a data-matching cycle is to be completed no later than: (a) subject to paragraph (b), 24 hours after it began; or (b) where the cycle is interrupted by a computer malfunction or industrial action - a period after it began equal to 24 hours and the period or periods of interruption. (3) Step 6 in a data-matching cycle is to be completed within7 days after the completion of Step 5. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 10 Source agencies may use results of data program
10. (1) Subject to subsection (2) and section 11, a source agency may take action on the basis of information received by it under Step 1, 4 or 6 of a data-matching cycle to: (a) in the case of a source agency: (i) cancel or suspend personal assistance being given to a person; or (ii) reject a claim for personal assistance; or (iii) change the rate or amount of personal assistance being given to, or claimed by, a person; or (iv) recover an overpayment of personal assistance; or (b) in the case of the tax agency - issue an assessment or an amended assessment of tax; or (c) investigate the possible commission of an offence. (2) Where a source agency receives particular information under Step 1, 4 or 6 of a data-matching cycle, the agency must destroy that particular information within 90 days of its receipt unless, within those days, the agency has considered that particular information and made a decision to take, or to carry out an investigation of the need to take, action allowed by subsection (1) on the basis of that particular information. (3) (a) Any action commenced in accordance with subsection (1) must be commenced within 12 months from the date that the information was received from the matching agency; (b) an agency may from time to time apply to the Secretary of its Department or the Commissioner of Taxation (as the case may be) who shall be empowered to grant an extension of time for up to 12 months on such terms or conditions as the Secretary or the Commissioner of Taxation thinks fit; (c) notwithstanding any other law or provision to the contrary, the power referred in paragraph (b) shall not be capable of delegation. (4) After the completion of action taken in accordance with subsection (1), a source agency must not retain any information obtained in the course of such action in a separate permanent register of individuals.
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DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 11 Notice of proposed action
11. (1) Subject to subsection (4), where, solely or partly because of information given in Step 6 of a data-matching cycle, an assistance agency considers taking action: (a) to cancel or suspend any personal assistance to; or (b) to reject a claim for personal assistance to; or (c) to reduce the rate or amount of personal assistance to; or (d) to recover an overpayment of personal assistance made to; a person, the agency: (e) must not take that action unless it had given the person written notice: (i) giving particulars of the information and the proposed action; and (ii) stating that the person has 21 days from the receipt of the notice in which to show cause in writing why the action should not be taken; and (f) must not take that action until the expiration of those 21 days. (2) Subject to subsection (5), where, solely or partly because of information given in Step 6 of a data-matching cycle, the tax agency considers taking action to issue an assessment or an amended assessment of tax to a person, the agency: (a) must not take that action unless it has given the person written notice: (i) giving particulars of the information and the proposed action; and (ii) stating that the person has 21 days from the receipt of the notice in which to show cause in writing why the action should not be taken; and (b) must not take that action until the end of those 21 days. (3) Notice under subsection (1) or (2) is to be given by post addressed to the person at the most recent address of the person known to the agency. (4) The assistance agency may take action described in subsection (1) without complying with paragraphs (1) (e) and (f) if compliance would prejudice the effectiveness of an investigation into the possible commission of an offence. (5) The tax agency may take action described in subsection (2) without complying with paragraphs (2) (a) and (b) if compliance would prejudice the effectiveness of an investigation into the possible commission of an offence. (6) Where: (a) an assistance agency gives a person notice under subsection (1) of proposed action to cancel or suspend, or reduce the rate or amount, of any personal assistance; and (b) the person does not show cause why the action should not be taken; any personal assistance of that kind given, or any personal assistance of that kind given above the reduced rate or amount, as the case may be, to the person during the period specified in subparagraph (1) (e) (ii) is a debt due to the Commonwealth. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 12 Guidelines relating to privacy
12. (1) The matching agency and the source agencies are to comply with the interim guidelines set out in the Schedule until guidelines under subsection (2) come into force and, when those guidelines come into force, those agencies are to comply with those guidelines. (2) The Privacy Commissioner must, by notice in writing, issue guidelines relating to the matching of data under this Act on or before 30 September 1991 and thereafter may, from time to time, issue further guidelines to replace any existing guidelines. (3) The Privacy Commissioner must report to the Parliament any failure to issue guidelines in accordance with subsection (2) within 15 sitting days of 30 September 1991. (4) Guidelines under subsection (2) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. (5) Section 46A of the Acts Interpretation Act 1901 applies to guidelines issued under subsection (2) as if the following paragraph were inserted after paragraph (1) (a) of that section: "(aa) section 48 applies as if paragraph 48 (1) (b) were omitted and the following paragraph substituted: (b) shall, subject to this section, take effect from: (i) the first day on which the guidelines are no longer liable to be disallowed; or (ii) if the guidelines make provision for their commencement after that day - in accordance with that provision.". DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 13 Investigations of breaches of privacy
13. (1) In this section: "Commissioner" means the Privacy Commissioner. (2) The Commissioner may investigate any act or practice which might be a breach of this Act or the guidelines in the Schedule. (3) Where the Commissioner finds that an investigated act or investigated practice of the matching agency or a source agency was in breach of this Act or the guidelines, the Commissioner and the agency must endeavour to make arrangements satisfactory to the Commissioner in relation to the act or practice.
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(4) Where the Commissioner finds that an act, or practice, investigated was in breach of this Act or the guidelines and arrangements have not been made under subsection (3) or the Commissioner considers a report under this subsection appropriate in all the circumstances, the Commissioner: (a) must make a report to the Minister about the act or practice; and (b) must set out in the report the Commissioner's findings and the reasons for those findings; and (c) may include in the report any recommendations by the Commissioner for preventing repetition of the act or a continuation of the practice; and (d) may include in the report any recommendation by the Commissioner for either or both of the following: (i) the payment of compensation in respect of a person who has suffered loss or damage as a result of the act or practice; or (ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice; and (e) must serve a copy of the report on the matching agency, any source agency concerned in the act or practice and the Minister responsible for such a source agency; and (f) may serve a copy of the report on any person affected by the act or practice. (5) Where, at the end of 60 days after a copy of a report about an act or practice was served under subsection (4), the Commissioner is not satisfied that reasonable steps have been taken to prevent a repetition of the act or a continuation of the practice, the Commissioner must give to the Minister a further report that: (a) incorporates the earlier report and any background information that the Commissioner has received from an agency in response to the earlier report; and (b) states whether, to the knowledge of the Commissioner, any action has been taken as a result of the findings and recommendations (if any) set out in the earlier report, and if so, the nature of that action; and (c) states why the Commissioner is not satisfied that reasonable steps have been taken to prevent a repetition of the act or a continuation of the practice; and, where the second report relates to an agency other than an agency administered by the Minister, must give a copy of the report to the Minister responsible for the agency. (6) The Minister is to cause a copy of the report given under subsection (5) to be laid before each House of the Parliament within 15 sitting days of that House, after the report is received by the Minister. (7) In conducting an investigation under this section, the Commissioner has all the powers of investigation that he or she has under Part 5 and section 99 of the Privacy Act 1988. (8) Nothing in this section or in any other provision of this Act limits the rights of persons under the Privacy Act 1988 to complain to the Commissioner about interference with privacy. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 14
14. (1) A breach of Part 2 of this Act or a breach of the guidelines referred to in section 12 constitutes an act or practice involving interference with the privacy of an individual for the purposes of section 13 of the Privacy Act 1988. (2) An individual may complain to the Privacy Commissioner about an act or practice in relation to the operation of this Act which may be an interference with the privacy of the individual. (3) In the event of a complaint being made by an individual, it shall be dealt with in accordance with the provisions of Part V of the Privacy Act 1988, which shall apply mutatis mutandis to this Act. DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 No. 20 of 1991 - SECT 15 Confidentiality
15. (1) An officer of an agency who has information only because of performing functions or duties under this Act, must not make a record of, or disclose, any of the information except: (a) in the course of carrying out functions and duties under this Act; or (b) with the consent of the person to whom the information relates. Penalty: Imprisonment for 2 years. (2) Where: (a) an officer of a source agency has information because of Step 1, 4 or 6 in a data-matching cycle; and (b) there is a law that relates to the recording or disclosure by the officer of information obtained by the officer (however the law is expressed);