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Privacy Amendment (Private Sector) Bill 2000

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1998-1999-2000

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Privacy Amendment (Private Sector) Bill 2000

 

 

 

(1)     Schedule 1, item 4, page 4 (lines 26 and 27), omit the definition of annual turnover , substitute:

annual turnover of a business has the meaning given by section 6DA.

[section 6—small business]

(2)     Schedule 1, item 18, page 8 (lines 27 to 35), omit the item.

[section 6—media]

(3)     Schedule 1, page 9 (after line 23), after item 22, insert:

22A  Subsection 6(1)

Insert:

principal executive , of an agency, has a meaning affected by section 37.

[section 6—identifiers]

(4)     Schedule 1, item 36, page 17 (line 8) to page 18 (line 7), omit subsections (1) and (2), substitute:

What is a small business ?

             (1)  A business is a small business at a time (the test time ) in a financial year (the current year ) if its annual turnover for the previous financial year is $3,000,000 or less.

Test for new business

             (2)  However, if there was no time in the previous financial year when the business was carried on, the business is a small business at the test time only if its annual turnover for the current year is $3,00 0,0 00 or less.

[section 6D—small business]

(5)     Schedule 1, item 36, page 18 (line 18), omit “at any time”, substitute “for a financial year that has ended”.

[section 6D—small business]

(6)     Schedule 1, item 36, page 19 (after line 8), at the end of section 6D, add:

Disclosure compelled or made with consent

             (7)  Paragraph (4)(c) does not prevent an individual, body corporate, partnership, unincorporated association or trust from being a small business operator only because he, she or it discloses personal information about another individual:

                     (a)  with the consent of the other individual; or

                     (b)  as required or authorised by or under legislation.

Collection with consent or under legislation

             (8)  Paragraph (4)(d) does not prevent an individual, body corporate, partnership, unincorporated association or trust from being a small business operator only because he, she or it:

                     (a)  collects personal information about another individual from someone else:

                              (i)  with the consent of the other individual; or

                             (ii)  as required or authorised by or under legislation; and

                     (b)  provides a benefit, service or advantage to be allowed to collect the information.

Related bodies corporate

             (9)  Despite subsection (3), a body corporate is not a small business operator if it is related to a body corporate that carries on a business that is not a small business.

[section 6D—small business]

(7)     Schedule 1, item 36, page 19 (after line 8), after section 6D, insert:

6DA   What is the annual turnover of a business?

What is the annual turnover of a business for a financial year?

             (1)  The annual turnover of a business for a financial year is the total of the following that is earned in the year in the course of the business:

                     (a)  the proceeds of sales of goods and/or services;

                     (b)  commission income;

                     (c)  repair and service income;

                     (d)  rent, leasing and hiring income;

                     (e)  government bounties and subsidies;

                      (f)  interest, royalties and dividends;

                     (g)  other operating income.

Note:          The annual turnover for a financial year of a business carried on by an entity that does not carry on another business will often be similar to the total of the instalment income the entity notifies to the Commissioner of Taxation for the 4 quarters in the year (or for the year, if the entity pays tax in annual instalments).

             (2)  However, if a business has been carried on for only part of a financial year, its annual turnover for the financial year is the amount worked out using the formula:

[section 6DA—small business]

(8)     Schedule 1, item 36, page 20 (after line 10), after section 6E, insert:

6EA   Small business operators choosing to be treated as organisations

             (1)  This Act (except section 16D) applies in relation to a small business operator as if the operator were an organisation while a choice by the operator to be treated as an organisation is registered under this section.

             (2)  A small business operator may make a choice in writing given to the Commissioner to be treated as an organisation.

Note:          A small business operator may revoke such a choice by writing given to the Commissioner. See subsection 33(3) of the Acts Interpretation Act 1901 .

             (3)  If the Commissioner is satisfied that a small business operator has made the choice to be treated as an organisation, the Commissioner must enter in a register of operators who have made such a choice:

                     (a)  the name or names under which the operator carries on business; and

                     (b)  the operator’s ABN, if the operator has one under the A New Tax System (Australian Business Number) Act 1999 .

             (4)  If a small business operator revokes a choice to be treated as an organisation, the Commissioner must remove from the register the material relating to the operator.

             (5)  The Commissioner may decide the form of the register and how it is to be kept.

             (6)  The Commissioner must make the register available to the public in the way that the Commissioner determines. However, the Commissioner must not make available to the public in the register information other than that described in subsection (3).

[section 6EA—small business]

(9)     Schedule 1, item 42, page 23 (lines 27 to 31), omit subsection (4), substitute:

Journalism

             (4)  An act done, or practice engaged in, by a media organisation is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in:

                     (a)  by the organisation in the course of journalism; and

                     (b)  at a time when the organisation is publicly committed to observe standards that:

                              (i)  deal with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters); and

                             (ii)  have been published in writing by the organisation or a person or body representing a class of media organisations.

[section 7B—media]

(10)   Schedule 1, item 52, page 30 (after line 16), after subsection (1), insert:

          (1A)  However, paragraph (1)(a) does not apply to the collection by a body corporate of personal information (other than sensitive information) from:

                     (a)  a related body corporate that is not an organisation; or

                     (b)  a related body corporate whose disclosure of the information to the body corporate is an exempt act or exempt practice for the purposes of paragraph 7(1)(ee); or

                     (c)  a related body corporate whose disclosure of the information to the body corporate is not an interference with privacy because of section 13D.

Note:          The effect of subsection (1A) is that a body corporate’s failure to comply with the National Privacy Principles, or a binding approved privacy code, in collecting personal information about an individual from a related body corporate covered by that subsection is an interference with the privacy of the individual.

[section 13B—related bodies corporate]

(11)   Schedule 1, item 54, page 33 (line 25), omit “and does not carry on any other business”, substitute “throughout the delayed application period for the organisation”.

[section 16D—small business]

(12)   Schedule 1, item 54, page 34 (lines 9 and 10), omit the definition of delayed application period , substitute:

delayed application period , for an organisation, means the period:

                     (a)  starting at the later of the following times:

                              (i)  the start of the day when this section commences;

                             (ii)  when the organisation became an organisation; and

                     (b)  ending at the earlier of the following times:

                              (i)  immediately before the first anniversary of the day when this section commences;

                             (ii)  when the organisation carries on either a business that is not a small business or a business that involves the provision of health services.

[section 16D—small business]

(13)   Schedule 1, item 58, page 36 (lines 29 to 35), omit paragraph (3)(c), substitute:

                     (c)  the code provides that, in performing his or her functions, and exercising his or her powers, under the code, an adjudicator for the code must have due regard to the matters that paragraph 29(a) requires the Commissioner to have due regard to; and

[section 18BB—considerations]

(14)   Schedule 1, item 58, page 39 (after line 32), after subsection 18BF(1), insert:

          (1A)  Before making guidelines for the purposes of paragraph (1)(b), the Commissioner must give everyone the Commissioner considers has a real and substantial interest in the matters covered by the proposed guidelines an opportunity to comment on them.

[section 18BF—guidelines]

(15)   Schedule 1, item 58, page 40 (line 1), omit “the guidelines”, substitute “guidelines made under subsection (1)”.

[section 18BF—guidelines]

(16)   Schedule 1, page 43 (after line 34), after item 76, insert:

76A  Section 37

Omit “For the purposes of this Part, the”, substitute “The”.

[section 37—identifiers]

(17)   Schedule 1, item 99, page 53 (after line 18), after subsection (7), insert:

          (7A)  In conducting a hearing and making an order under this section, the court is to have due regard to the matters that paragraph 29(a) requires the Commissioner to have due regard to.

[section 55A—considerations]

(18)   Schedule 1, item 114, page 57 (after line 23), after section 70A, insert:

70B   Application of this Part to former organisations

                   If an individual, body corporate, partnership, unincorporated association or trust ceases to be an organisation but continues to exist, this Part operates in relation to:

                     (a)  an act or practice of the organisation (while it was an organisation); and

                     (b)  the individual, body corporate, partnership, unincorporated association or trust;

as if he, she or it were still (and had been at all relevant times) an organisation.

Example 1: If an individual carrying on a business was not a small business operator, but later became one and remained alive:

(a)           a complaint may be made under this Part about an act or practice of the individual in carrying on the business before he or she became a small business operator; and

(b)           the complaint may be investigated (and further proceedings taken) under this Part as though the individual were still an organisation.

Example 2: A small business operator chooses under section 6EA to be treated as an organisation, but later revokes the choice. A complaint about an act or practice the operator engaged in while the choice was registered under that section may be made and investigated under this Part as if the operator were an organisation.

[section 70B—small business]

(19)   Schedule 1, page 66 (after line 5), after item 138, insert:

138A  At the end of section 100

Add:

             (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.

[section 100—identifiers]

(20)   Schedule 1, item 139, page 67 (lines 33 to 36), omit subparagraph (iv), substitute:

                            (iv)  in each direct marketing communication with the individual, the organisation draws to the individual’s attention, or prominently displays a notice, that he or she may express a wish not to receive any further direct marketing communications; and

                             (v)  each written direct marketing communication by the organisation with the individual (up to and including the communication that involves the use) sets out the organisation’s business address and telephone number and, if the communication with the individual is made by fax, telex or other electronic means, a number or address at which the organisation can be directly contacted electronically; or

[Schedule 3, clause 2—direct marketing]

(21)   Schedule 1, item 139, page 73 (after line 29), after subclause 7.1, insert:

         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 those matters are prescribed: see subsection 100(2).

[Schedule 3, clause 7—identifiers]

(22)   Schedule 1, item 139, page 74 (lines 1 and 2), omit paragraph 7.2(b), substitute:

                     (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 subsection 100(2).

[Schedule 3, clause 7—identifiers]

(23)   Schedule 1, item 139, page 74 (line 6), after “name”, insert “or ABN (as defined in the A New Tax System (Australian Business Number) Act 1999 )”.

[Schedule 3, clause 7—identifiers]