Impact of Privacy Act on use of AGS and Payroll Numbers by Superannuation Funds Application for a Public Interest Determination

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1 This document has been archived and is no longer in use by the Office. A list of the Office's current publications is available on the publications 18 December 2001 Mr Malcolm Crompton Federal Privacy Commissioner GPO Box 5218 SYDNEY NSW 2000 Dear Commissioner Impact of Privacy Act on use of AGS and Payroll Numbers by Superannuation Funds Application for a Public Interest Determination In preparing for the commencement of amendments made to the Privacy Act ( the Act ) by the Privacy Amendment (Private Sector) Act 2000, we have identified an issue affecting superannuation funds which may require the making of a regulation under the Act. Our Administrator, Jacques Martin Industry Funds Administration (JMIFA) wrote to Mr Robert Cornall at the Attorney-General s department on 20 September 2001 requesting that they consider making a regulation but as yet this issue is not resolved. I am now making an application to you on behalf of the Australian government Employees Superannuation Trust (AGEST) for a Public Interest Determination to be made in this matter. AGEST is the default or nominated fund for Commonwealth employees who receive their superannuation contributions in accordance with the Superannuation (Productivity Benefit) Act 1988 ( the PB Act ). A number of other funds administered by JMIFA have also been approved under the PB Act as alternative funds that employees may elect to join: the Journalists Union Superannuation Trust ( JUST Super ), the Superannuation Trust of Australia ( STA ), the Construction and Building Industry Fund ( Cbus ) and, from 1 January 2002, the Health Employees Superannuation Trust of Australia ( HESTA ). While I wish to draw your attention in particular to the impact on AGEST of complying with National Privacy Principle (NPP) 7, it should be noted that similar issues will be encountered by each of these approved funds. AGEST has a total of 130,000 members. AGEST uses the AGS number assigned to Commonwealth and ACT government employees to remit superannuation contributions on behalf of members of Commonwealth and ACT government departments and agencies. We understand that this practice was initiated by the Department of Finance, and continues at the request of the separate Commonwealth departments to which responsibility for such matters has since devolved. Using the AGS number allows the payments to be made and processed quickly, accurately and in a cost-effective way. 1

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3 As you know, the AGS number is the government payroll number. Payroll numbers are routinely used by the superannuation industry to link employees with the contributions that their employers make. The issue in terms of the AGS number is that its use by non-government organisations now appears to be limited by National Privacy Principle 7. AGEST processes between 13,000-15,000 payments every fortnight from CITEC. These are initiated by approximately 240 separate Commonwealth, ACT and NT government departments. A number of other large departments, such as Centrelink, the Australian Taxation Office, the Department of Defence, the Department of Education, Training & Youth Affairs and the Aboriginal Tutorial Assistance Scheme, do not use the services of CITEC. These departments forward their data (including the employees AGS numbers) and payments directly to AGEST. While each employee is assigned a fund membership number when he/she joins AGEST, the AGS number is frequently used by the departments and employer agencies with AGEST to verify the identity of members. If the AGS number cannot be used, the departments will have to adopt the AGEST member number. We would not be able to accept contributions without a specific number assigned as it is not reliable to only match on the member s name and date of birth (where supplied). Problems that would be incurred: The processing time would be increased by at least 5 fold (one days work to 5 days work) without a number to verify the person correctly. The reason being that the system would only have a limited number of fields to check to find a match and it will have to go through all member records before this match could be achieved. Where a member number is used in combination with a member name and date of birth, the accuracy level can be depended upon much more reliably. We have a significant number of rejections under the current circumstances where a person may have shifted departments where under one department they would be known as Paul Stevens however under the new department he would be listed as Paul J Stevens. The AGS number assists us to know it is the right person and follow it through to confirm. The communication with the departments would increase significantly, adding an estimated 7 extra days a month to the verification processes if a unique number is not used. The AGS number is the only way we pick up changes of names as well. Without it, we would set members up under the new name and they would consequently receive a new member welcome letter. We would receive complaints from the members if this occurred. Claims will be significantly delayed due to the increased processing time and need to verify details with departments. Members could also miss the small amount of time allowed (upon becoming a permanent employee) to transfer their benefit from AGEST to the CSS or PSS if claims are delayed. We would expect significant problems in ensuring the correct AGEST member number is recorded on an ongoing basis on the 130 different systems used by the departments. Further delays in processing will be experienced where departments have keyed in the wrong numbers or have not received one as yet for new members. We do not use the AGS for any other purpose than to ensure we have the correct person to allocate their contributions accurately. 3

4 Members often quote their AGS number to identify themselves in dealing with the Fund as they are used to using this number across all their government Superannuation Funds, eg. CSS, PSS and AGEST. Approximately 2,500 new employees of the departments become members of AGEST each month. In practice, AGEST only uses the AGEST membership number in all correspondence with the members, however whilst it is not encouraged, most AGEST members will often resort to using their AGS number when dealing with the Fund, in preference to their membership number. Although we already ask members to quote the AGEST membership number in all our correspondence when dealing with the fund, this will be actively reinforced to stop members using the AGS number as an identifier for AGEST. The AGS number is also used in the process of transferring benefits from AGEST to the Public Sector Superannuation Scheme ( PSS ) when members become full time or permanent employees of the government. AGEST makes between 100 and 150 such transfers each month. From 21 December 2001, when NPP 7 comes into effect, we are concerned that these practices will no longer be lawful. Our reasoning is as follows: NPP 7.2 allows private sector organisations to use or disclose identifiers assigned by or on behalf of an agency only in providing services to or for the agency, or for law enforcement purposes. In our view neither AGEST (or JMIFA on its behalf) is providing services to or for government agencies; rather, we believe the service is to and for the fund members. NPP 7.2(b) allows use or disclosure of an identifier assigned by or on behalf of a government agency where it is required by law (relying on NPP2.1(h)), however, we have not located any requirement under superannuation law to use the AGS numbers. The AGS number, and any other payroll number assigned by or on behalf of a Commonwealth government agency, falls within the definition of an identifier at NPP 7.3. In order for AGEST to comply with NPP 7, all Commonwealth and ACT government agencies (and associated organisations) will need to reprogram their systems so that they can collect the AGEST fund membership number. (They would also need to make similar arrangements to collect the membership numbers of all other approved funds.) Agencies would then need to ensure that employee data sent to AGEST each pay cycle was linked to the AGEST membership number only, instead of the employee s AGS number. AGEST will need to supply each department or its agency with the AGEST membership number before the first fortnightly payroll run after 21 December 2001, in order for it to comply with the new requirements. Whilst this will place a considerable time burden on all concerned, it will also impose a significant cost on both AGEST and the government departments or its agencies to re-configure systems and processes to enable the membership number to be adopted for all back office communication. Any costs will ultimately be borne by the members in the case of AGEST and the public in the case of the government departments changes. AGEST is strongly committed to protecting the privacy of fund members. We are equally committed to providing a high standard of service and it is paramount that we meet the interests of members in allocating contributions to the correct accounts. However, we believe that the public interest in our organisation continuing the current practices far outweighs the interest in complying with the requirements of the relevant sections of NPP 7 as stated above, for four main reasons: 4

5 1. The use of the AGS number allows employees to move from fund to fund with less risk of losing touch with their accumulated entitlements. Lost members are a major concern for the superannuation industry and the government, and moving to fund-generated numbers could exacerbate the problem for government employees. 2. Requiring government agencies to record fund membership numbers on their systems increases the margin for error, since it entails another step in the process of linking employees, employers and funds. We believe this will be a major risk to maintaining the accuracy of the member data. 3. The costs involved in making the necessary changes will divert a higher proportion of members contributions from investments to administration. 4. The individual s privacy would be no better protected: essentially the same information would flow between employers and the funds, for the same purpose and under the same conditions except that (unlike now) employers would collect and use the person s fund membership number as well. At the same time, the community generally would bear the cost of the expense to government agencies of changing their systems. Accordingly, we believe that legislative action is necessary to resolve and clarify this issue and hence the reason JMIFA wrote to the Secretary of the Attorney-General in September. For example, a regulation could be made allowing the AGS number, and any other payroll number assigned by or on behalf of a Commonwealth government agency, to be used and disclosed by funds that have been nominated or approved under the Superannuation (Productivity Benefit) Act 1988, for the purpose of administering the employees membership of those funds. Such a regulation would activate the provisions of NPP 7.2(b). Given the imminent deadline for the commencement of the new legislation, I urgently request your earliest consideration of this application for a Public Interest Determination to ensure our current acts and practices will not be in breach of NPP 7 from 21 December In our view the interests of the members are better served by the continuing use of the AGS numbers in the current manner, as it provides a more accurate and timely allocation of their contributions and validation of their identity in any dealings with the departments, agencies and relevant Superannuation Funds. If you would like more information about this application or the current practices, please contact me on me on (03) Yours sincerely BRUCE HARTNETT Chief Executive Officer cc: Mr Robert Cornall, Secretary, Attorney-General s Department Ms Sue Walpole, JMIFA Mr John McCullagh 5

6 Extract from Privacy Amendment (Private Sector) Act 2000 National Privacy Principle An organisation must not adopt as its own identifier of an individual an identifier of the individual that has been assigned by: (a) an agency; or (b) an agent of an agency acting in its capacity as agent; or (c) a contracted service provider for a Commonwealth contract acting in its capacity as contracted service provider for that contract. 7.1A However, subclause 7.1 does not apply to the adoption by a prescribed organisation of a prescribed identifier in prescribed circumstances. Note: There are prerequisites that must be satisfied before these matters are prescribed, see 100(2). 7.2 An organisation must not use or disclose an identifier assigned to an individual by an agency, or by an agent or contracted service provider mentioned in subclause 7.1 unless (a) the use or disclosure is necessary for the organisation to fulfil its obligations to the agency; or (b) one or more of paragraphs 2.1(e) to 2.1(h) (inclusive) apply to the use or disclosure; or (c) the use or disclosure is by a prescribed organisation of a prescribed identifier in prescribed circumstances. Note: There are prerequisites that must be satisfied before the matters mentioned in paragraph (c) are prescribed, see 100(2). 7.3 In this clause: Identifier includes a number assigned by an organisation to an individual to uniquely identify the individual for the purposes of the organisation s operations. However, an individual s name or ABN (as defined in the A New Tax System (Australian Business Number) Act 1999) is not an identifier. New section 100(2) Before the Governor-General makes regulations for the purposes of subclause 7.1A or paragraph 7.2(c) of the national Privacy Principles prescribing an organisation, identifier and circumstances, the Minister must be satisfied that: (a) the agency or the principal executive of the agency (if the agency has a principal executive) has agreed that adoption, use or disclosure by the organisation of the identifier in the circumstances is appropriate; and (b) the agency or the principal executive of the agency (if the agency has a principal executive) has consulted the Commissioner about adoption, use or disclosure by the organisation of the identifier in the circumstances; and (c) adoption, use or disclosure by the organisation of the identifier in the circumstances can only be for the benefit of the individual concerned. 6