Privacy Act 1993

103 Notice of adverse action proposed

  • (1) Subject to subsections (1A) to (2A) and to section 180C(1) of the Corrections Act 2004, a specified agency shall not take adverse action against any individual on the basis (whether wholly or in part) of a discrepancy produced by an authorised information matching programme—

    • (a) unless that agency has given that individual written notice—

      • (i) specifying particulars of the discrepancy and of the adverse action that it 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 the action should not be taken; and

    • (b) until the expiration of those 5 working days.

    (1A) Nothing in subsection (1) shall prevent the department for the time being responsible for the administration of the Social Security Act 1964 from immediately suspending a sickness, training, unemployment, independent youth, or emergency benefit, or a job search allowance, paid to an individual where the discrepancy arises in respect of departure information supplied to that department pursuant to section 280 of the Customs and Excise Act 1996, and where, before or immediately after the decision to suspend, the department gives the individual written notice—

    • (a) specifying particulars of the discrepancy and the suspension of benefit, and any other adverse action the department proposes to take; and

    • (b) stating that the individual has 5 working days from the receipt of the notice to show cause why the benefit ought not to have been suspended or why the adverse action should not be taken, or both—

    and the adverse action shall not be taken until the expiration of those 5 working days.

    (1B) Nothing in subsection (1) prevents the Commissioner of Inland Revenue from immediately suspending payment to an individual of all or part of an interim instalment of a credit of tax under subparts MA to MF and MZ of the Income Tax Act 2007 when a discrepancy is identified in information supplied to the Commissioner under section 85G of the Tax Administration Act 1994 if, before or immediately after the decision to suspend, the Commissioner gives a written notice to the individual that—

    • (a) provides details of the discrepancy and the suspension of payment of the credit of tax and any other adverse action which the Commissioner proposes to take; and

    • (b) states that the individual has 5 working days from the receipt of the notice to show cause why payment of the credit of tax ought not to have been suspended or why the adverse action should not be taken, or both—

    and the other adverse action must not be taken until expiration of those 5 working days.

    (1C) Nothing in subsection (1) prevents the Commissioner of Inland Revenue from immediately taking action to recover amounts relating to—

    • (a) unpaid amounts owed to the Commissioner by an individual who is in serious default identified in information supplied to the Commissioner under section 280H of the Customs and Excise Act 1996; or

    • (b) financial support under the Child Support Act 1991 owed to the Commissioner by an individual who is identified in information supplied to the Commissioner under section 280K or 280L of the Customs and Excise Act 1996.

    (2) Nothing in subsection (1) or subsection (1A) or subsection (1B) prevents an agency from taking adverse action against an individual if compliance with the requirements of that subsection would prejudice any investigation into the commission of an offence or the possible commission of an offence.

    (2A) Nothing in subsection (1) prevents any constable or any bailiff from immediately executing a warrant to arrest an individual in respect of the non-payment of the whole or any part of a fine if the discrepancy arises in respect of arrival and departure information supplied under section 280D of the Customs and Excise Act 1996 and if, before executing the warrant, the individual concerned is—

    • (a) informed of the intention to execute the warrant; and

    • (b) given an opportunity to confirm—

      • (i) whether or not he or she is the individual named in the warrant; and

      • (ii) that neither of the following circumstances applies:

        • (A) the fine has been paid:

        • (B) an arrangement to pay the fine over time has been entered into.

    (3) Every notice required to be given to any individual under subsection (1) or subsection (1A) or subsection (1B) may be given by delivering it to that individual, and may be delivered—

    • (a) personally; or

    • (b) by leaving it at that individual's usual or last known place of residence or business or at the address specified by that individual in any application or other document received from that individual; or

    • (c) by posting it in a letter addressed to that individual at that place of residence or business or at that address.

    (4) If any such notice is sent to any individual by post, then in the absence of proof to the contrary, the notice shall be deemed to have been delivered to that individual on the fourth day after the day on which it was posted, and in proving the delivery it shall be sufficient to prove that the letter was properly addressed and posted.

    (5) In this section,—

    amount of reparation has the same meaning as in section 79 of the Summary Proceedings Act 1957

    bailiff means a bailiff of the District Court or of the High Court

    fine means—

    • (a) a fine within the meaning of section 79 of the Summary Proceedings Act 1957:

    • (b) a fine to which section 19 of the Crimes Act 1961 applies:

    • (c) a fine to which section 43 or 45 of the Misuse of Drugs Amendment Act 1978 applies:

    • (d) a fine to which section 28I of the District Courts Act 1947 applies:

    Compare: 1991 No 126 s 18; Data-matching Program (Assistance and Tax) Act 1990 s 11 (Aust); 5 USC 552a(p)(3), (4)

    Section 103(1): amended, on 9 April 2008, by section 7(2) of the Corrections (Social Assistance) Amendment Act 2008 (2008 No 24).

    Section 103(1): amended, on 10 April 2006, by section 4(1) of the Privacy Amendment Act 2006 (2006 No 11).

    Section 103(1A): inserted, on 30 June 1993, by section 2(2) of the Privacy Amendment Act 1993 (1993 No 59).

    Section 103(1A): amended, on 1 October 1998, by section 11 of the Employment Services and Income Support (Integrated Administration) Act 1998 (1998 No 96).

    Section 103(1A): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

    Section 103(1B): inserted, on 1 April 2005, by section 24(2) of the Taxation (Working for Families) Act 2004 (2004 No 52).

    Section 103(1B): amended, on 1 April 2008 (effective for 2008–09 income year and later income years, except when the context requires otherwise), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

    Section 103(1C): replaced, on 30 March 2013, by section 50 of the Student Loan Scheme Amendment Act 2013 (2013 No 10).

    Section 103(2): amended, on 1 April 2005, by section 24(3) of the Taxation (Working for Families) Act 2004 (2004 No 52).

    Section 103(2): amended, on 30 June 1993, by section 2(3)(a) of the Privacy Amendment Act 1993 (1993 No 59).

    Section 103(2A): inserted, on 10 April 2006, by section 4(2) of the Privacy Amendment Act 2006 (2006 No 11).

    Section 103(2A): amended, on 1 October 2008, pursuant to section 116(a)(vii) of the Policing Act 2008 (2008 No 72).

    Section 103(3): amended, on 1 April 2005, by section 24(4) of the Taxation (Working for Families) Act 2004 (2004 No 52).

    Section 103(3): amended, on 30 June 1993, by section 2(3)(b) of the Privacy Amendment Act 1993 (1993 No 59).

    Section 103(5): added, on 10 April 2006, by section 4(3) of the Privacy Amendment Act 2006 (2006 No 11).

    Section 103(5) amount of reparation: inserted, on 13 February 2012, by section 4(3) of the Privacy Amendment Act 2011 (2011 No 44).

    Section 103(5) fine: replaced, on 13 February 2012, by section 4(1) of the Privacy Amendment Act 2011 (2011 No 44).

    Section 103(5) reparation: repealed, on 13 February 2012, by section 4(2) of the Privacy Amendment Act 2011 (2011 No 44).