Privacy (Information Sharing Agreement between New Zealand Gang Intelligence Centre Agencies) Order 2018

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2018/247

Coat of Arms of New Zealand

Privacy (Information Sharing Agreement between New Zealand Gang Intelligence Centre Agencies) Order 2018

Patsy Reddy, Governor-General

Order in Council

At Wellington this 3rd day of December 2018

Present:
The Right Hon Jacinda Ardern presiding in Council

This order is made under sections 96J to 96L of the Privacy Act 1993 and section 81A of the Tax Administration Act 1994

(a)

on the advice and with the consent of the Executive Council; and

(b)

on the recommendation of the Minister of Police made in accordance with section 96N of the Privacy Act 1993.

Order

1 Title

This order is the Privacy (Information Sharing Agreement between New Zealand Gang Intelligence Centre Agencies) Order 2018.

2 Commencement

This order comes into force on 4 January 2019.

3 Interpretation

In this order, unless the context otherwise requires,—

Act means the Privacy Act 1993

agreement means the information sharing agreement approved under clause 4

criminal activity means an activity that constitutes the commission of an offence

family relationship has the same meaning as in section 12 of the Family Violence Act 2018

gang means—

(a)

a New Zealand adult gang; or

(b)

a transnational crime group

gang associate means an individual who associates with a gang member for the likely purpose of participating in a criminal activity

gang member, in relation to a gang, means an individual who is a member of the gang (including a prospective member)

Health Information Privacy Code means the Health Information Privacy Code 1994 issued by the Privacy Commissioner under section 46 of the Act

New Zealand adult gang means an organisation or a group that—

(a)

is recorded on the New Zealand National Gang List; and

(b)

promotes, encourages, or engages in criminal activity that is driven by a desire to—

(i)

create an atmosphere of fear and intimidation; or

(ii)

make a profit

New Zealand Gang Intelligence Centre or GIC means the unit established within the New Zealand Police that is staffed with employees of the GIC Agencies and whose purpose is to—

(a)

collect, combine, and share information relating to gangs and gang criminal activity; and

(b)

respond to requests for information from GIC Agencies

New Zealand Gang Intelligence Centre Agencies or GIC Agencies means 1 or more of the following agencies:

(a)

Accident Compensation Corporation:

(b)

Department of Corrections:

(c)

Department of Internal Affairs:

(d)

Housing New Zealand Corporation:

(e)

Inland Revenue Department:

(f)

Ministry of Business, Innovation, and Employment:

(g)

Ministry of Education:

(h)

Ministry of Health:

(i)

Ministry of Social Development:

(j)

New Zealand Customs Service:

(k)

New Zealand Police:

(l)

Oranga Tamariki—Ministry for Children

New Zealand National Gang List means a list created and maintained by the GIC of all known gangs

personal information has the same meaning as in section 2(1) of the Act

prospective member, in relation to a gang, means a person who is a member of the gang but who does not have full membership status

serious offence means an offence punishable by 4 or more years’ imprisonment

subsidies means 1 or more of—

(a)

Working for Families tax credits payable under the Income Tax Act 2007 and the Tax Administration Act 1994; and

(b)

community services cards available under regulations made (or deemed to have been made) under 1 or both of—

(i)

section 92 of the New Zealand Public Health and Disability Act 2000; and

(ii)

section 437 of the Social Security Act 2018; and

(c)

student loans payable under the student loan scheme as defined in section 4(1) of the Student Loan Scheme Act 2011; and

(d)

student allowances payable under the Education Act 1989; and

(e)

child support payable under the Child Support Act 1991; and

(f)

income-related rent subsidies payable under the Housing Restructuring and Tenancy Matters Act 1992; and

(g)

social housing available under the Housing Restructuring and Tenancy Matters Act 1992

tax obligations means tax obligations arising under the Acts described in section 81(1C) of the Tax Administration Act 1994

transnational crime group means individuals or entities that enable, support, or commit crimes across New Zealand and international borders

victim

(a)

means any person who has been harmed by, or as a result of, an activity undertaken by a gang or gang member; and

(b)

includes any person who may be harmed by, or as a result of, an activity undertaken by a gang or gang member.

4 Information sharing agreement approved

(1)

The information sharing agreement described in subclause (2) is approved.

(2)

The information sharing agreement is the Information Sharing Agreement between the New Zealand Gang Intelligence Centre Agencies made on 7 November 2018.

(3)

The agreement comes into force on the day this order comes into force.

Parties and lead agency

5 Parties to agreement and designation of lead agency

(1)

The parties to the agreement are the GIC Agencies.

(2)

The lead GIC Agency is the New Zealand Police.

Purposes for which information may be shared

6 Purposes for which information may be shared

The agreement authorises the sharing of personal information between the GIC Agencies and the GIC to—

(a)

enable a more collaborative, cross-agency approach to preventing or reducing harm to individuals, families, communities, or society generally that is caused by, or contributed to by, the activities of gangs; and

(b)

enable the enforcement of the law; and

(c)

produce data on crime trends.

Public services that agreement facilitates

7 Public services that agreement is intended to facilitate

The public services that the agreement is intended to facilitate are—

(a)

maintaining public safety:

(b)

preventing the commission of offences:

(c)

enforcing the law:

(d)

identifying vulnerable persons, including children and young persons in need of care and protection, and providing those persons with the necessary social assistance and support.

Personal information that may be shared

8 Personal information that may be shared under agreement

(1)

The personal information that may be shared is information about an individual described in subclause (3) that is—

(a)

specified in the second column of Schedule 1; and

(b)

described in the third column of Schedule 1.

(2)

The personal information may be—

(a)

shared with the GIC by the GIC Agencies specified in the fourth column of Schedule 1 opposite that item of personal information; and

(b)

subsequently shared by the GIC with 1 or more GIC Agencies.

(3)

An individual referred to in subclause (1) is—

(a)

a gang member:

(b)

a gang associate:

(c)

a person with whom a gang member or gang associate has, or has had, a family relationship:

(d)

a person who is a victim:

(e)

a person with whom a victim has, or has had, a family relationship.

(4)

The personal information referred to in subclause (1) includes any information that a GIC Agency or the GIC derives from the information it has collected.

9 Other personal information that may be shared under agreement

(1)

In addition to the personal information that may be shared under clause 8, personal information about an individual who has provided any service of a kind described in subclause (2) to a taxpayer described in subclause (3) may be—

(a)

shared with the GIC by the Inland Revenue Department; and

(b)

subsequently shared by the GIC with a GIC agency.

(2)

The kinds of services referred to in subclause (1) are—

(a)

business services:

(b)

services as a high-value dealer:

(c)

services as a trust and company service provider.

(3)

A taxpayer referred to in subclause (1) is—

(a)

a gang; or

(b)

a gang member; or

(c)

a gang associate; or

(d)

a person with whom a gang member or gang associate has, or has had, a family relationship:

(e)

an entity that is controlled by a person described in any of paragraphs (a) to (d), because that person is—

(i)

a director of the entity; or

(ii)

a shareholder of the entity; or

(iii)

a person who participates in the activities of the entity.

(4)

The personal information that may be shared under subclause (1) about an individual is—

(a)

the individual’s—

(i)

name; and

(ii)

date of birth; and

(iii)

contact details; and

(b)

the nature of the business services provided by the individual; and

(c)

the name of the individual to whom those services were provided.

(5)

In this clause,—

business services means—

(a)

tax services:

(b)

accountancy services:

(c)

bookkeeping services:

(d)

financial services (as defined in section 5 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008):

(e)

legal services:

(f)

advisory services

contact details means either or both of the following:

(a)

addresses (including email addresses):

(b)

telephone numbers

entity means—

(a)

an unincorporated body:

(b)

a body corporate:

(c)

a corporation sole:

(d)

a trust

high-value dealer has the same meaning as in section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009

trust and company service provider has the same meaning as in section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.

10 How parties may use personal information

(1)

This clause applies to the use of personal information described in Schedule 1.

(2)

The GIC and the GIC Agencies may use the personal information for the purposes specified in clause 6(a) and (b).

(3)

The GIC and the GIC Agencies may also use the personal information for the purpose specified in clause 6(c) if the information—

(a)

is used in a form in which no individual can be identified; or

(b)

is used for statistical purposes and will not be published in a form that could reasonably be expected to identify any individual.

Exemptions from information privacy principles

11 Exemption from information privacy principle 2 (source of personal information) and Health Information Privacy Code rule 2 (source of health information)

(1)

Subclause (2) exempts the GIC and GIC Agencies from—

(a)

information privacy principle 2; and

(b)

rule 2 of the Health Information Privacy Code.

(2)

It is not a breach of information privacy principle 2 or rule 2 of the Health Information Privacy Code if—

(a)

personal information is collected—

(i)

by the GIC from a GIC Agency; or

(ii)

by a GIC Agency from the GIC; and

(b)

the collection of that information is—

(i)

in accordance with the agreement; and

(ii)

for any of the purposes stated in clause 6.

12 Exemption from information privacy principle 10 (limits on use of personal information) and Health Information Privacy Code rule 10 (limits on use of health information)

(1)

Subclause (2) exempts the GIC and GIC Agencies from—

(a)

information privacy principle 10; and

(b)

rule 10 of the Health Information Privacy Code.

(2)

It is not a breach of information privacy principle 10 or rule 10 of the Health Information Privacy Code—

(a)

if—

(i)

personal information that is collected by the GIC from a GIC Agency is used by the GIC; or

(ii)

personal information that is collected by a GIC Agency from the GIC is used by the GIC Agency; and

(b)

if the use of that information is—

(i)

in accordance with the agreement; and

(ii)

for any of the purposes stated in clause 6; and

(iii)

in accordance with clause 10.

13 Exemption from information privacy principle 11 (limits on disclosure of personal information) and Health Information Privacy Code rule 11 (limits on disclosure of health information)

(1)

Subclause (2) exempts the GIC and GIC Agencies from—

(a)

information privacy principle 11; and

(b)

rule 11 of the Health Information Privacy Code.

(2)

It is not a breach of information privacy principle 11 or rule 11 of the Health Information Privacy Code if—

(a)

personal information is disclosed—

(i)

by a GIC Agency to the GIC; or

(ii)

by the GIC to a GIC Agency; and

(b)

the disclosure of that information is—

(i)

in accordance with the agreement; and

(ii)

for any of the purposes stated in clause 6.

Adverse actions

14 Adverse actions

(1)

This clause states the adverse actions that each GIC Agency can reasonably be expected to take (if any) in relation to an individual as a result of the sharing of personal information under the agreement.

(2)

The GIC will not take any adverse action as a result of the sharing of personal information under the agreement.

(3)

An adverse action may only be taken by a GIC Agency to the extent authorised by legislation.

(4)

The Accident Compensation Corporation can reasonably be expected to—

(a)

investigate eligibility to receive entitlements under the Accident Compensation Act 2001:

(b)

refuse to grant, suspend, cease, review, or reassess entitlements:

(c)

take proceedings to recover debts.

(5)

The Department of Corrections can reasonably be expected to perform any function or exercise any power conferred on the chief executive, a prison manager, an employee, or a contractor by—

(b)

regulations made under any of those Acts.

(6)

The Department of Internal Affairs can reasonably be expected to—

(a)

provide adverse advice to the Minister of Internal Affairs in relation to an application for the grant of citizenship:

(b)

investigate any matter that may constitute an offence under any legislation it administers and report any suspected offences to the New Zealand Police.

(7)

Housing New Zealand Corporation can reasonably be expected to—

(a)
(b)

commence proceedings under the Residential Tenancies Act 1986 to obtain an order of the Tenancy Tribunal (for example, an order terminating a tenancy).

(8)

The Inland Revenue Department can reasonably be expected to—

(a)

assess whether tax obligations have been met:

(b)

assess eligibility for, or entitlement to, subsidies that are applied for or received:

(c)

assess whether obligations in relation to subsidies that are applied for or received have been met:

(d)

enforce any unmet tax obligations or unmet obligations in relation to subsidies that are applied for or received.

(9)

The Ministry of Business, Innovation, and Employment can reasonably be expected to—

(a)

investigate any matter that may constitute an offence under the legislation it administers:

(b)

exercise its power to—

(i)

search a person arriving in New Zealand:

(ii)

detain a person:

(iii)

prosecute offences:

(c)

place a warning or alert on any record:

(d)

decline an application or a request made under the Immigration Act 2009 (for example, decline an application for a visa made under Part 3 of that Act) or make a decision under the Immigration Act 2009 that adversely affects the rights of an individual (for example, a decision under section 97 of that Act that a person may not board a craft).

(10)

The Ministry of Education is not reasonably expected to take any adverse action as a result of the sharing of personal information under the agreement.

(11)

The Ministry of Health can reasonably be expected to—

(a)

investigate any matter that may constitute an offence under any legislation it administers:

(b)

prosecute offences:

(c)

withdraw funding:

(d)

recover debts due to the Crown:

(e)

terminate or suspend a contractual relationship:

(f)

exercise a contractual right.

(12)

The Ministry of Social Development can reasonably be expected to—

(a)

investigate eligibility for, or entitlement to, benefits and subsidies that are applied for or received:

(b)

assess whether obligations in relation to benefits and subsidies that are applied for or received have been met:

(c)

refuse to grant, suspend, cease, review, or reassess benefits:

(d)

recover debts due to the Crown.

(13)

The New Zealand Customs Service can reasonably be expected to—

(a)

investigate any matter that may constitute an offence under the legislation it administers:

(b)

detain a person:

(c)

arrest a person:

(d)

examine or search any thing:

(e)

seize any thing:

(f)

require the production of any document:

(g)

prosecute offences.

(14)

The New Zealand Police can reasonably be expected to—

(a)

take steps to prevent crime:

(b)

investigate offences:

(c)

detain a person:

(d)

arrest a person:

(e)

seize any thing:

(f)

prosecute offences.

(15)

Oranga Tamariki—Ministry for Children can reasonably be expected to intervene in the care of a child.

15 Procedure before adverse action taken

(1)

Before taking any adverse action against an individual as a result of the sharing of personal information under the agreement, a GIC Agency must—

(a)

take reasonable steps to confirm the accuracy of the information; and

(b)

comply with—

(i)

all applicable internal policies and guidelines; and

(ii)

all applicable legislation; and

(iii)

the Solicitor-General’s Prosecution Guidelines (if applicable); and

(c)

have regard to the principles of natural justice.

(2)

The agreement provides that a GIC Agency will (in accordance with section 96R(a)(ii) of the Act) not provide notice of adverse action under section 96Q of the Act in the following circumstances:

(a)

if the personal information shared relates to a situation where the GIC Agency has reasonable grounds to suspect that urgent intervention is required to ensure the safety of any individual from existing or potential serious harm:

(b)

if, as a result of the sharing of personal information, the GIC Agency has reasonable grounds to suspect that a serious offence has been, or will be, committed and the personal information is relevant to the prevention, detection, investigation, or prosecution of that offence:

(c)

if notice of adverse action may defeat the purpose of taking the action.

Miscellaneous

16 How to access agreement

(1)

A copy of the agreement is available online at http://www.police.govt.nz

(2)

A copy of the agreement is also available at New Zealand Police Headquarters, 180 Molesworth Street, Wellington 6011.

17 Schedule 2A of Privacy Act 1993 amended

(1)

This clause amends the Privacy Act 1993.

(2)

In Schedule 2A, after the item relating to the information sharing agreement between the Ministry of Justice and the Crown Law Office, insert the item set out in Schedule 2 of this order.

Schedule 1 Personal information that may be shared

cl 8

ItemInformationDescriptionGIC Agencies
1Identifying information

Information that identifies, or relates to the identity of, an individual (including an individual’s biographical details, previous names and aliases, biometric information, unique identifiers assigned by any government agency, and distinguishing features)

All GIC Agencies
2Contact details

Information that may be used to contact an individual, including information about any other individual recorded as being a contact individual for that individual

All GIC Agencies
3Gang associationsInformation about an individual’s association with a gangAll GIC Agencies
4Family relationship information

The following information about any person (person B) with whom an individual has, or has had, a family relationship:

(a)

person B’s name (including previous names and aliases):

(b)

person B’s identifying information

All GIC Agencies
5Health and disability information

Information that relates to an individual’s health, including mental health, and includes—

(a)

any disability the individual has:

(b)

the results of any drug tests undertaken by the individual:

(c)

any communicable diseases the individual has:

(d)

any exposure the individual has had to dangerous chemicals

Accident Compensation Corporation

Department of Corrections

Housing New Zealand Corporation

Ministry of Business, Innovation, and Employment

Ministry of Health

Ministry of Social Development

New Zealand Police

Oranga Tamariki—Ministry for Children

6Education information

Information relating to an individual’s—

(a)

education (including details of any qualifications); and

(b)

training (including details of any training providers); and

(c)

curriculum vitae

Department of Corrections

Ministry of Business, Innovation, and Employment

Ministry of Education

Ministry of Social Development

Oranga Tamariki—Ministry for Children

7Employment Information

Information relating to an individual’s current or previous employment

Accident Compensation Corporation

Department of Corrections

Department of Internal Affairs

Inland Revenue Department

Ministry of Business, Innovation, and Employment

Ministry of Social Development

New Zealand Police

Oranga Tamariki—Ministry for Children

8Social assistance information

Information relating to assistance of a financial nature provided by the State to an individual, including any—

(a)

benefit (monetary or non-monetary):

(b)

allowance:

(c)

grant:

(d)

subsidy:

(e)

supplement:

(f)

child support:

(g)

student loan:

(h)

working for families tax credit

Housing New Zealand Corporation

Inland Revenue Department

Ministry of Business, Innovation, and Employment

Ministry of Social Development

Oranga Tamariki—Ministry for Children

9Financial information

Information relating to an individual’s financial position, including details of the individual’s—

(a)

bank accounts:

(b)

prisoner trust accounts:

(c)

income:

(d)

debt:

(e)

living expenses:

(f)

tax refunds

All GIC Agencies
10Financial relationship information

Information relating to an individual’s business or financial relationship with any other person (person B)

If person B is an individual, the following information relating to person B:

(a)

person B’s identifying information (as described in item 1):

(b)

person B’s employment information (as described in item 7):

(c)

person B’s social assistance information (as described in item 8):

(d)

person B’s financial transaction information (as described in item 11):

(e)

person B’s tax information (as described in item 12):

(f)

person B’s asset information (as described in item 14)

All GIC Agencies
11Financial transaction information

Information relating to—

(a)

the movement of an individual’s assets and liabilities:

(b)

an agreement to move an individual’s assets and liabilities

All GIC Agencies
12Tax information

Information relating to an individual’s current or previous tax affairs, including—

(a)

the individual’s—

(i)

customer type (for example, salary and wage earner, self-employed, business owner):

(ii)

income:

(iii)

expenditure:

(iv)

liabilities; and

(b)

the tax paid by the individual; and

(c)

the tax refunded to the individual; and

(d)

the tax adjustments made in respect of the individual’s tax position

Department of Internal Affairs

Inland Revenue Department

Ministry of Business, Innovation, and Employment

Ministry of Social Development

Oranga Tamariki—Ministry for Children

13Housing information

Information relating to an individual’s previous and current accommodation, and any forwarding addresses given by the individual

Department of Corrections

Housing New Zealand Corporation

Ministry of Business, Innovation, and Employment

Ministry of Social Development

Oranga Tamariki—Ministry for Children

14Asset information

Information about—

(a)

any property (real or personal) held by an individual; and

(b)

any beneficial interests to which an individual is entitled

All GIC Agencies
15Travel, movement, and location information

Information relating to the location, movements, and travel of an individual—

(a)

within New Zealand; and

(b)

into and out of New Zealand

Department of Corrections

Ministry of Business, Innovation, and Employment

Ministry of Social Development

New Zealand Customs Service

New Zealand Police

Oranga Tamariki—Ministry for Children

16Communications information

Details of communications that an individual has made, including telephone calls monitored under the Corrections Act 2004

Department of Corrections

Inland Revenue Department

Ministry of Business, Innovation, and Employment

New Zealand Police

17Criminal investigation information

Information relating to any criminal investigation conducted in respect of an individual, including any criminal charge that has, at any time, been laid against an individual, whether or not that charge resulted in a conviction

All GIC Agencies
18Immigration information

Information relating to an individual’s immigration history and current status

Department of Internal Affairs

Ministry of Business, Innovation, and Employment

Ministry of Social Development

Oranga Tamariki—Ministry for Children

19Import and export information

Information relating to the import or export of goods by an individual

New Zealand Customs Service

20Threat or risk to safety of others

Information relating to an individual that may give rise to concerns about the safety of any other person, including whether the individual—

(a)

has, or has had, a firearms licence:

(b)

has a weapon (including any firearm or ammunition) in his or her possession or control:

(c)

has dangerous chemicals in his or her possession or control:

(d)

owns a dog classified as a dangerous dog under section 31 of the Dog Control Act 1996

All GIC agencies

21Next-of-kin informationInformation that identifies, and may be used to contact, the next-of-kin of an individual who is a gang member or gang associateAll GIC agencies

Schedule 2 Amendment to Schedule 2A of Privacy Act 1993

cl 17

Information Sharing Agreement between the New Zealand Gang Intelligence Centre Agencies made on 7 November 2018
(a)

maintaining public safety:

(b)

crime prevention:

(c)

law enforcement.

http://www.police.govt.nz New Zealand Police
(a)

identifying information:

(b)

contact details:

(c)

gang associations:

(d)

family relationship information:

(e)

health and disability information:

(f)

education information:

(g)

employment information:

(h)

social assistance information:

(i)

financial information:

(j)

financial relationship information:

(k)

financial transaction information:

(l)

tax information:

(m)

housing information:

(n)

asset information:

(o)

travel, movement, and location information:

(p)

communications information:

(q)

criminal investigation information:

(r)

immigration information:

(s)

import and export information:

(t)

threat or risk to safety of others:

(u)

next-of-kin information.

Michael Webster,
Clerk of the Executive Council.

Explanatory note

This note is not part of the order, but is intended to indicate its general effect.

This order, which comes into force on 4 January 2019, approves an information sharing agreement entered into under the Privacy Act 1993 (the Act) between the New Zealand Gang Intelligence Centre Agencies (the GIC Agencies).

Under the agreement, a GIC Agency can share with the New Zealand Gang Intelligence Centre (the GIC), and the GIC can share with any GIC Agency, personal information about—

  • gang members:

  • gang associates:

  • persons with whom a gang member or gang associate has, or has had, a family relationship:

  • victims:

  • persons with whom a victim has, or has had, a family relationship.

The personal information that can be shared is set out in Schedule 1 of the order. The information listed in the second column of that schedule, and described in the third column of the schedule, may be shared with the GIC by the GIC Agencies listed in the fourth column of the schedule holding the information. The personal information that can be shared includes a person’s identifying information, contact details, family relationship information, social assistance information, financial information, tax information, and criminal investigation information. This information can then be shared by the GIC with any GIC Agency.

Also under the agreement, the Inland Revenue Department can share with the GIC personal information about individuals who provide certain services to gangs, gang members, gang associates, persons with whom a gang member or gang associate has, or has had, a family relationship, and certain entities. The personal information about those individuals that can be shared is the individual’s name, date of birth, contact details, and services provided. This information can subsequently be shared by the GIC with any GIC agency.

The sharing of this information across the GIC Agencies will enable a more collaborative approach to be taken toward preventing or reducing harm caused to individuals, families, communities, and society generally by gang activities. It will also enable the GIC and GIC Agencies to produce data on crime trends. This will facilitate improvements to public safety, crime prevention, law enforcement, and also the provision of social services to persons who are identified as vulnerable.

This order inserts into Schedule 2A of the Act information regarding the agreement that is required to be inserted under section 96L of the Act.

Regulatory impact assessment

The New Zealand Police produced a regulatory impact assessment on 17 May 2017 to help inform the decisions taken by the Government relating to the contents of this instrument.

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 6 December 2018.

This order is administered by the New Zealand Police.