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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

 

 

 

 

FURTHER SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

 

the Honourable Daryl Williams AM QC MP)

 





PRIVACY AMENDMENT (PRIVATE SECTOR) BILL 2000

OUTLINE

The Privacy Amendment (Private Sector) Bill 2000 (the Bill) is part of the Commonwealth Government’s commitment to enacting balanced privacy legislation for the private sector to ensure that full advantage may be taken of the opportunities that electronic commerce presents for Australian business and consumers.  The National Privacy Principles in the Bill set out minimum standards about how business and other private sector organisations should collect personal information; about the use and disclosure of personal information; and about ensuring that the personal information they hold is accurate and secure.

The Bill was introduced into the House of Representatives on 12 April 2000.  Government amendments to the Bill were moved and passed during debate in the House.  The Bill, as amended, was passed by the House on 8 November 2000.

The Bill was introduced into the Senate on 29 November 2000.  Amendments were moved by the Opposition and the Democrats during debate.  Most of these amendments were passed by the Senate.  The Bill, as amended, was passed by the Senate on 30 November 2000.

The Government amendments to the Bill explained in this Explanatory Memorandum relate to some of the matters dealt with in amendments moved in the Senate. 

FINANCIAL IMPACT STATEMENT

The amendments are expected to have minimal impact on Commonwealth expenditure or revenue.

 



SCHEDULE 1 - AMENDMENT OF THE PRIVACY ACT 1988

Amendment 1

[Section 7C - political acts]

1.       Amendment 1 amends Item 42 of Schedule 1 of the Bill by inserting a note in the exemption for acts and practices of political representatives, and their contractors, subcontractors and volunteers.  The note confirms the way in which the exemption operates, by making it clear that the exemption does not extend to the use or disclosure (by sale or otherwise) of personal information collected by virtue of the exemption in a way not covered by the exemption.  Such a use or disclosure would attract the normal operation of the Bill.

Amendment 2

[Section 16C - application of National Privacy Principles]

2.       Amendment 2 amends Item 54 of Schedule 1 of the Bill by inserting new

sub-clause 16C(1A).  Sub-clause 16C(1A) restricts the application of National Privacy Principle 2 to personal information collected after commencement of the clause  (that is, 12 months after the Bill receives Royal Assent).

Amendment 3

[Section 16C - application of National Privacy Principles]

3.       Amendment 3 amends Item 54 of Schedule 1 of the Bill by omitting

subsection 16C(3) and substituting a new sub-clause 16C(3).  New sub-clause 16C(3) provides that, generally speaking, National Privacy Principle 6 only applies to personal information collected by an organisation after the date of commencement of the clause (that is, 12 months after the Bill receives Royal Assent).  Sub-clause 16C(3) does, however, provide exceptions to this general rule.  It states that National Privacy Principle 6 will apply to personal information collected by an organisation before the commencement date, where that information is used or disclosed by the organisation after the commencement date.  This provision is consistent with an organisation’s obligations under National Privacy Principle 3 to ensure that the personal information it uses and discloses is accurate, complete and

up-to-date.  It is not, however, intended to impose unreasonable burdens upon organisations.  Compliance is not required where it would place an unreasonable administrative burden on the organisation or cause the organisation unreasonable expense.

Amendment 4

[Section 18BB - privacy codes]

4.       Amendment 4 amends Item 58 of Schedule 1 of the Bill by omitting from paragraph 18BB(3)(k) “, nature and outcome” and substituting “and nature”. 

Sub-clause 18BB(3) sets out the matters about which the Privacy Commissioner must be satisfied in the case where a privacy code submitted to him or her for approval contains procedures for making and dealing with complaints. 

Paragraphs 18BB(3)(h) and (i) provide that a code must require a report to be submitted to the Privacy Commissioner annually.  Amended paragraph 18BB(3)(k) and proposed new paragraph 18BB(3)(ka) (inserted into the Bill by Amendment 5) set out what the report must contain.

5.       Amended paragraph 18BB(3)(k) provides that the code must require that the report contain general statistics about the total number of complaints received and the nature of those complaints (regardless of whether they have been resolved).   Proposed paragraph 18BB(3)(ka) sets out the additional details that are required in the annual report where a complaint has been resolved.

Amendment 5

[Section 18BB - privacy codes]

6.       Amendment 5 amends Item 58 of Schedule 1 of the Bill by inserting a new paragraph 18BB(3)(ka) after paragraph 18BB(3)(k).  New paragraph 18BB(3)(ka) requires a summary of each complaint finally dealt with by the adjudicator to be included in the annual report.  This is in addition to the general statistics required under paragraph 18BB(3)(k).  The summary must identify the nature of the complaint, the provisions of the code applied in dealing with the complaint, and the outcome of the dealing. 

Amendment 6

[Section 18BB - privacy codes]

7.       Amendment 6 amends Item 58 of Schedule 1 of the Bill by omitting from paragraph 18BB(3)(l) “a person who is” and substituting “an adjudicator for the code or another person as the person”.  Paragraph 18BB(3)(l) identifies who may be responsible for the annual reporting requirements for the code set out in

subsection 18BB(3).

Amendment 7

[Section 18BH - review of privacy codes]

8.       Amendment 7 amends Item 58 of Schedule 1 of the Bill by inserting a new

clause 18BH after clause 18BG.  New sub-clause 18BH(1) provides that the Privacy Commissioner may review the operation of an approved privacy code.  The purpose of the review is to establish how well the code complaint process is operating.  The note inserted after the sub-clause makes it clear that the review of the operation of an approved privacy code may be relevant to the exercise of the Privacy Commissioner’s power under clause 18BE to revoke the approval of an approved privacy code. 

9.       New sub-clause 18BH(2) sets out what the Privacy Commissioner may do when conducting a review of an approved privacy code.  It provides that the Commissioner may:

a.              consider the process under the code for making and dealing with complaints;

b.              inspect the records of an adjudicator for the code;

c.              consider the outcome of complaints dealt with under the code;

d.              interview an adjudicator for the code.

Amendment 8

[Section 18BI - review of adjudicator’s determination]

10.    Amendment 8 amends Item 58 of Schedule 1 of the Bill by inserting a new

clause 18BI after new clause 18BH (inserted by Amendment 7). 

New sub-clause 18BI(1) enables a person who is aggrieved by a determination made by an adjudicator under an approved privacy code to apply to the Privacy Commissioner for review of the adjudicator’s determination. 

11.    The clause recognises that, in some circumstances, the Privacy Commissioner will perform the role of adjudicator under an approved privacy code.  A decision made by the Privacy Commissioner is not reviewable by him or her under this clause.

12.    New sub-clause 18BI(2) provides that Divisions 1 and 2 of Part V of the

Privacy Act (that provide for the investigation and determination of complaints made to the Commissioner) apply when the Privacy Commissioner is reviewing a determination made by a code adjudicator. 

13.    New sub-clause 18BI(3) provides that the adjudicator’s determination continues to have effect unless and until the Privacy Commissioner makes a determination under Division 2 of Part V of the Act (which relates to determinations following investigation of complaints) relating to the complaint. 

Amendment 9

[Section 27 - functions of Commissioner]

14.    Amendment 9 amends Item 59 of Schedule 1 of the Bill by inserting new

paragraphs 27(1)(ad) and (ae) into section 27 of the Privacy Act.  Section 27 outlines the Privacy Commissioner’s functions.  The addition of new paragraphs 27(1)(ad) and 27(1)(ae) are a consequence of Amendments 7 and 8. 

New paragraph 27(1)(ad) confirms that one of the Privacy Commissioner’s functions is to review the operation of approved privacy codes under clause 18BH. 

New paragraph 27(1)(ae) confirms that another one of the Privacy Commissioner’s functions is to review determinations made by code adjudicators (but not where the Commissioner is the adjudicator) in accordance with clause 18BI.