Code of Conduct Applying to Obtaining Information Under Section 11 of the Social Security Act 1964 Pursuant to section 11b (1) of the Social Security Act 1964 (``the Act''), I, Margaret Clara Bazley, Director-General of Social Welfare, in consultation with the Privacy Commissioner under the Privacy Act 1993, approve and issue the following Code of Conduct which applies in respect of requirements to supply information or documents under section 11 (1) of the Act. Every officer of the department must comply with the Code of Conduct in relation to making a requirement under section 11 (1) for the purposes of section 11 (2). Dated this 17th day of December 1997. MARGARET BAZLEY, Director-General of Social Welfare. CODE 1. Background 1.1 Statutory background Section 11 (1) of the Act (``section 11'') empowers the Director-General of Social Welfare (``Director- General'') to require any person to provide information or documents for certain purposes set out in section 11 (2) and is subject to section 11 (3)(8). The Director-General's power under section 11 may be exercised by any officer of the Department of Social Welfare acting under the delegation of the Director- General (``delegated officer'') given under section 10 (1) of the Act. Section 11b of the Act requires the Director-General to issue a Code of Conduct (``the Code'') which the Director-General and any delegated officer must comply with when making a requirement under section 11. Section 11c of the Act prescribes that the Code must contain certain provisions. Any person may complain to the Privacy Commissioner about a breach of the Code and Part VIII of the Privacy Act 1993 applies to such complaints as if the Code is a Code of Practice under Part VI of the Privacy Act 1993. 1.2 Ambit of the Code The Code applies only to requirements for information or documents made under section 11 for the purposes set out in section 11 (2) of the Act (``s.11 (2)''). 1.3 This Code will be reviewed in 12 months. 2. Steps to be taken prior to making a section 11 requirement 2.1 When seeking information about a beneficiary, as that term is defined in section 3 (1) of the Act (``beneficiary''), the Director-General or any delegated officer must, prior to issuing a section 11 requirement to a person other than the beneficiary a) request the information or documents, which are to be the subject of the section 11 requirement, from the beneficiary, and b) give the beneficiary a reasonable time to respond to the request for information or documents and inform the beneficiary of the time within which the beneficiary is required to respond; except where the Director-General or any delegated officer reasonably believes compliance would prejudice the maintenance of the law, or where the Director-General is unable to locate the beneficiary. 2.2 Prejudice to maintenance of the law defined Without limiting the meaning of the expression ``prejudice the maintenance of the law'' in clause 2.1, a request for information or documents from the beneficiary would prejudice the maintenance of the law where making the request a) would prejudice i) the prevention, detection, investigation, prosecution or punishment of an offence; or ii) the imposition of a pecuniary penalty; or b) would result in the beneficiary leaving New Zealand with intent to defeat an investigation into his or her benefit; or c) would result in the beneficiary destroying or otherwise tampering with relevant evidence. 3. Process for making section 11 requirements 3.1 Section 11 requirements must be for an authorised purpose The Director-General or any delegated officer may only exercise the power under section 11 for one or more of the purposes listed in section 11 (2), as set out in Appendix 1. 3.2 Form and content of section 11 requirement Every requirement made to a person pursuant to section 11 for a purpose set out in section 11 (2) must a) be in writing; and b) specify that the requirement is made under section 11 of the Act; and c) specify the information or documents sought; and d) specify the date by or period within which the person must supply the required information or documents. 3.3 The date or period must not be less than five (5) working days after the notice of the requirement is given. 4. Section 11 requirements to beneficiaries 4.1 The Director-General or any delegated officer may require a beneficiary to supply information or documents under section 11. 5. Section 11 requirements to financial institutions, law practitioners, employers and former employers 5.1 Section 11 requirements to financial institutions, law practitioners, employers and former employers Having complied with clause 2.1 of the Code, the Director-General or any delegated officer may make a requirement under section 11 in respect of a beneficiary to any financial institution, law practitioner, employer or former employer. 5.2 Restriction on type of information sought from employers and former employers Section 11 requirements to employers or former employers must a) require only information or documents relating to the employment and address of an employee or former employee; and b) not require employers or former employers to provide information or documents which relate solely to the marital status of an employee or former employee. 6. Section 11 requirements to other persons 6.1 Having complied with clause 2.1 and subject to clauses 6.3 to 6.4 of the Code, the Director-General or any delegated officer, may issue a requirement under section 11 to any other person if he or she has reasonable cause to make such a requirement. 6.2 Reasonable cause defined Reasonable cause includes a) cause to suspect that a beneficiary who is receiving, or has received, or made a claim for, a benefit or payment under the Act or under the Social Welfare (Transitional Provisions) Act 1990, or a community services card under the Health Entitlement Card Regulations 1993, is or was not entitled to receive that benefit or rate of benefit or payment or card. b) where a beneficiary has been identified on the basis of a discrepancy produced by an authorised information matching programme (as those terms are defined in Part X of the Privacy Act 1993) conducted by the Department; or c) cause to suspect that the beneficiary has committed an offence under the Act or has obtained by fraud any payment, credit or advance under the Act; or d) that the beneficiary or his or her spouse has refused or failed within a reasonable time, to provide any information or produce any document which he or she has been requested to provide; or e) being unable to locate the whereabouts of any beneficiary who is indebted to the Crown; or f) being unable to satisfactorily ascertain the financial circumstances of any beneficiary who is indebted to the Crown. 6.3 Restriction on type of information sought from the Education Sector The Director-General or any delegated officer must not under section 11 require any early childhood centre within the meaning of section 308 (1) of the Education Act 1989, including any kindergarten, crche, play centre, or kohanga reo, or any school, or any member of its staff to a) Give an opinion about whether a child's parents or caregivers are married or in a relationship in the nature of marriage; or b) provide any information concerning any confidential communication made by a beneficiary to a staff member of any early childhood centre or school in the course of a child's education. 6.4 For the avoidance of doubt, in clauses 6.3 ``confidential communication'' does not include any information provided by the beneficiary that is recorded on any form, or that is obtained from the beneficiary when enrolling or re-enrolling a child in an educational establishment of a kind referred to in clause 6.3. 6.5 Restriction on type of information sought from the Health Sector The Director-General or any delegated officer must not require any hospital, medical clinic, registered medical practitioner, nurse, midwife, or clinical psychologist, or any person that hospital, clinic, registered medical practitioner, nurse, midwife, or clinical psychologist employs, to a) give an opinion about whether a beneficiary is married or in a relationship in the nature of marriage; or b) provide any information concerning any confidential communication made by any person to a registered medical practitioner, nurse, midwife, or clinical psychologist for the purpose of diagnosis or treatment. 6.6 For the avoidance of doubt, in clauses 6.5 ``confidential communication'' does not include any administrative details contained in any pre-admission or other administration form. 7. Enforcing compliance with section 11 requirements 7.1 No enforcement proceedings under section 11 (3) of the Act are to be commenced unless the Director- General or a delegated officer has advised the recipient of a requirement under section 11 that a) no person will be required to provide any information or documents that would be privileged in Court of law except as provided in section 11 (5) of the Act (which relates to financial matters connected with a law practitioner's trust account); and b) any person who knowingly fails to comply with a section 11 requirement or furnishes false or misleading information commits an offence and is liable upon conviction to a fine not exceeding $2,000.00. Appendix 1 Section 11 (2) Social Security Act 1964 Purposes for Which Section 11 Requirements can be Made (a) Determining whether a person who is receiving, or has received, or made a claim for, a benefit or payment under this Part of this Act or under the Social Welfare (Transitional Provisions) Act 1990 or under a welfare programme approved by the Minister under section 124 (1) (d) of this Act is or was entitled to receive that benefit or that payment; or (b) Determining the rate of benefit or payment that is or was applicable to that person; or (c) Determining whether a person who has been issued with, or has made a claim for, an entitlement card under regulations in force under section 132a of this Act, is or was entitled to be issued with that card; or (d) Determining whether a person whose financial means are being assessed pursuant to section 69f of this Act is able to pay or contribute to the cost of the residential care disability services provided to that person, and whether a person who has been so assessed is entitled to that assessment; or (da) Determining pursuant to section 69g of this Act, the amount that any person is required to pay towards the cost of the home-based disability support services supplied to that person, and whether a person who has been so assessed is entitled to that assessment; or (e) Ascertaining the financial circumstances or whereabouts of any person who is indebted to the Crown under (i) This part of this Act; or (ii) Sections 27i to 27zi (except section 27x) of, and the Twentieth Schedule to, this Act (as preserved by section 256 (1) of the Child Support Act 1991); or (iii) Section 61ca of this Act; or (f) Discharging the Director-General's functions under this Act or under any regulations in force under this Act or under the Social Welfare (Transitional Provisions) Act 1990 or under any welfare programme approved by the Minister under section 124 (1) (d) of this Act. Explanatory Note: Section 11 of the Social Security Act 1964 provides Income Support with the power to require people to provide information. Section 11 also protects information that would be privileged in court. The use of section 11 by Income Support staff is governed by the Code of Conduct, which came into force on the 17 December 1997. The Code promotes a balance between the protection of certain confidential relationships and the ability of Income Support to require the information needed to determine benefit entitlement. The Code was issued in consultation with the Privacy Commissioner and will be reviewed in December 1998. The section 11 Code provides further restrictions on the types of information that can be sought from certain people, and sets out procedures to be followed when seeking information under section 11. For Example: information must be requested from the beneficiary in the first instance, unless this would prejudice the maintenance of the law. information sought from employers is restricted to matters relating to employment and the address of the employee. confidential communications with people in the medical and education sector are protected. people in the medical or education sector cannot be asked for their opinion about a person's relationship status. reasonable cause must exist before information is sought from anyone other than a bank, financial institution, lawyer or employer.