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Privacy Amendment Bill 1998
Schedule 1 Amendment of the Privacy Act 1988

   

1  Subsection 6(1) (paragraphs (i), (j) and (k) of the definition of agency )

Repeal the paragraphs, substitute:

                      (i)  a contracted service provider.

2  Subsection 6(1)

Insert:

Commonwealth agency means an agency referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of the definition of agency .

3  Subsection 6(1)

Insert:

Commonwealth contract means a contract, to which a Commonwealth agency or the Commonwealth is or was a party, under which services (other than excluded funded services only) are to be, or were to be, provided to a Commonwealth agency. For the avoidance of doubt, services provided to a Commonwealth agency include services that consist of the provision of services to other persons in connection with the performance of the Commonwealth agency’s functions.

Example:    A Commonwealth agency, whose functions include matters relating to unemployment, contracts with a company to provide job-seeking assistance to individual citizens. In this case, the service to the agency consists of the provision of the assistance to those individuals.

4  Subsection 6(1)

Insert:

contracted service provider , for a Commonwealth contract, means:

                     (a)  a person who is or was a party to the Commonwealth contract and who is or was responsible for the provision of services (other than the provision of excluded funded services only) to a Commonwealth agency under the Commonwealth contract; or

                     (b)  a subcontractor for the Commonwealth contract.

5  Subsection 6(1) (paragraph (b) of the definition of eligible hearing service provider )

Omit “(g), (h) or (j)”, substitute “(g) or (h)”.

6  Subsection 6(1)

Insert:

excluded funded service means the following:

                     (a)  a service specified in Schedule 3, other than a service prescribed for the purposes of this paragraph;

                     (b)  a service that is specified by the regulations to be an excluded funded service.

7  Subsection 6(1)

Insert:

outsourcing agency , for a Commonwealth contract, means any Commonwealth agency to which services are provided under the Commonwealth contract .

8  Subsection 6(1)

Insert:

subcontractor , for a Commonwealth contract, means a person:

                     (a)  who is or was a party to a contract (the subcontract ):

                              (i)  with a contracted service provider for the Commonwealth contract (within the meaning of paragraph (a) of the definition of contracted service provider ); or

                             (ii)  with a subcontractor for the Commonwealth contract (under a previous application of this definition); and

                     (b)  who is or was responsible under the subcontract for the provision of services (other than excluded funded services only) to a Commonwealth agency, or to a contracted service provider for the Commonwealth contract, for the purposes (whether direct or indirect) of the Commonwealth contract.

9  After subsection 6(4)

Insert:

          (4A)  A reference in this Act to a contracted service provider is a reference to a person in the capacity of contracted service provider.

          (4B) A reference in this Act to an act done, or a practice engaged in, by a contracted service provider for a Commonwealth contract is a reference to an act done, or a practice engaged in, by the contracted service provider in connection with:

                     (a)  the collection of personal information that relates to the provision of a service, other than an excluded funded service, by the contracted service provider under or for the purposes (whether direct or indirect) of the Commonwealth contract; or

                     (b)  personal information in the possession or under the control of the contracted service provider that relates to the provision of a service, other than an excluded funded service, by the contracted service provider under or for the purposes (whether direct or indirect) of the Commonwealth contract.

The personal information referred to in paragraphs (a) and (b) does not include personal information collected by, or in the possession or control of, the contracted service provider in relation to the contracted service provider’s own personnel.

          (4C)  For the purposes of the application of this Act to a contracted service provider, this Act is to be read as if Schedule 3 to the Australian Capital Territory Government Service (Consequential Provisions) Act 1994 had not been enacted.

Note:          Schedule 3 to the Australian Capital Territory Government Service (Consequential Provisions) Act 1994 has the general effect of applying the Privacy Act 1988 to certain Australian Capital Territory agencies. The provisions relating to contracted service providers do not so apply.

10  After section 6

Insert:

6A   Notional contracts between Commonwealth agencies

                   This Act applies to a notional contract between a Commonwealth agency (or part of a Commonwealth agency) and another Commonwealth agency (or part of a Commonwealth agency) as if:

                     (a)  the notional contract were a real contract; and

                     (b)  each Commonwealth agency (or part of a Commonwealth agency) that is a party to the notional contract were a person who is a party to the real contract.

Note:          This section has the effect that Commonwealth agencies that are not legal persons may nevertheless be contracted service providers in some circumstances. For example, one Department may provide services to another Department under an agreement that is not a legally binding contract.

11  Paragraph 7(1)(a)

Omit “an eligible hearing service provider or an eligible case manager”, substitute “a contracted service provider”.

12  At the end of subparagraphs 7(1)(a)(i), (ii) and (iii)

Add “or”.

13  At the end of paragraph 7(1)(a)

Add:

                            (vi) a Commonwealth agency in the capacity of contracted service provider; or

14  Paragraphs 7(1)(cb) and (cc)

Repeal the paragraphs, substitute:

                    (cb)  an act done, or a practice engaged in, by a contracted service provider, not including an exempt act or practice within the meaning of section 7A; or

15  Paragraphs 7(1)(d) and (e)

Omit “an eligible hearing service provider or an eligible case manager”, substitute “a contracted service provider”.

16  Paragraphs 7(1)(ea), (eb), (ec) and (ed)

Repeal the paragraphs, substitute:

                or (ea)  an act done, or a practice engaged in, by a Minister in relation to the affairs of a contracted service provider, not including an act done, or a practice engaged in, in relation to an existing record; or

                    (eb)  an act done, or a practice engaged in, by a Minister in relation to a record:

                              (i)  that is in the Minister’s possession in his or her capacity as a Minister; and

                             (ii) that relates to the affairs of a contracted service provider;

17  At the end of paragraph 7(1)(f)

Add “or”.

18  After section 7

Insert:

7A   Exempt acts and practices

             (1)  An act or practice is an exempt act or practice for the purposes of paragraph 7(1)(cb) if:

                     (a) the act is done, or the practice is engaged in, by a contracted service provider for a Commonwealth contract; and

                     (b)  the act or practice is in connection with services provided by the contracted service provider (whether directly or indirectly) to an agency that is a relevant outsourcing agency (see subsection (2)); and

                     (c)  had the act or practice been done or engaged in by the relevant outsourcing agency (rather than by the contracted service provider) it would not have been an act or practice for the purposes of this Act because of the operation of section 7.

Note:          This means that exemptions from the Act that apply to an outsourcing agency will also apply to contracted service providers providing services that relate to that outsourcing agency.

             (2)  For the purposes of subsection (1), relevant outsourcing agency means:

                     (a)  if the Commonwealth contract concerned is not a Commonwealth subcontract—any outsourcing agency for the Commonwealth contract; or

                     (b)  if the Commonwealth contract concerned is a Commonwealth subcontract—any outsourcing agency for the head contract in respect of the Commonwealth subcontract.

             (3)  In this section:

                   Commonwealth subcontract means a Commonwealth contract entered into under or for the purposes (whether direct or indirect) of another Commonwealth contract.

head contract , in respect of a Commonwealth subcontract, means a Commonwealth contract:

                     (a)  under which, or for the purposes (whether direct or indirect) of which, the Commonwealth subcontract was entered into; and

                     (b)  that was not itself entered into under or for the purposes (whether direct or indirect) of another Commonwealth contract.

19  After subsection 8(1)

Insert:

          (1A)  For the purposes of applying subsection 8(1) to an agency in the capacity of contracted service provider, a reference to an act done, or a practice engaged in, by a person employed by the agency includes a reference to an act done, or a practice engaged in, by a person acting on behalf of, or at the request of, the agency.

20  After section 8

Insert:

8A   Attribution of acts and practices of contracted service providers outside Australia

             (1)  This section applies to an act done, or a practice engaged in, outside Australia by a contracted service provider (the relevant contractor ) for a Commonwealth contract, in relation to personal information contained in a record.

             (2)  If the relevant contractor was resident in Australia at the time of the act or practice, then the act or practice is treated as having been done, or engaged in, in Australia.

             (3)  If the relevant contractor was not resident in Australia at the time of the act or practice, then:

                     (a)  the act or practice is treated as having been done, or engaged in, in Australia; and

                     (b)  the act or practice is treated as an act or practice of the responsible agency; and

                     (c)  the responsible agency is treated as the record-keeper in relation to that record.

             (4)  For the purposes of this section, the responsible agency is whichever of the following last made the personal information available to the relevant contractor (whether directly or indirectly):

                     (a)  an outsourcing agency for the Commonwealth contract;

                     (b)  a contracted service provider for the Commonwealth contract that, at the time of the act or practice, was resident in Australia.

             (5)  For the purposes of this section, a body corporate is resident in Australia if:

                     (a) it is incorporated by or under a law of the Commonwealth, a State or a Territory; or

                     (b) it carries on business principally in Australia.

             (6)  This section is not intended to imply anything about extraterritorial application of this Act.

21  Subsection 9(1)

After “collects”, insert “or has control over the collection of ”.

22  After section 14

Insert:

14A   Transfer of personal information for purposes of Commonwealth contracts

             (1)  If:

                     (a)  a Commonwealth agency has possession or control of a record that contains personal information, in its capacity of outsourcing agency for a Commonwealth contract; and

                     (b)  the Commonwealth agency transfers the personal information to a contracted service provider for the Commonwealth contract;

then the transfer of the personal information:

                     (c)  is taken to be a use of the personal information for the purposes of Information Privacy Principle 10; and

                     (d)  is not taken to be a disclosure of the personal information for the purposes of Information Privacy Principle 11.

             (2)  If:

                     (a)  a contracted service provider for a Commonwealth contract has possession or control of a record that contains personal information; and

                     (b)  the contracted service provider transfers the personal information to:

                              (i) a Commonwealth agency in the capacity of outsourcing agency for the Commonwealth contract; or

                             (ii)  another contracted service provider for the Commonwealth contract;

then the transfer of the personal information:

                     (c)  is taken to be a use of the personal information for the purposes of Information Privacy Principle 10; and

                     (d)  is not taken to be a disclosure of the personal information for the purposes of Information Privacy Principle 11.

23  At the end of section 15

Add:

             (3)  Subject to this section, the amendments made by Schedule 1 to the Privacy Amendment Act 1998 apply to acts done, and practices engaged in, after the commencement time.

             (4)  Information Privacy Principles 1, 2 and 3 do not apply to an act done, or a practice engaged in, by a contracted service provider in relation to personal information collected before the commencement time.

             (5)  Information Privacy Principles 4, 8 and 9 apply to an act done, or a practice engaged in, by a contracted service provider, in relation to personal information collected before or after the commencement time.

             (6)  Subject to subsection (1), Information Privacy Principles 10 and 11 apply to an act done, or a practice engaged in, by a contracted service provider, in relation to personal information:

                     (a)  collected by a Commonwealth agency, whether before or after the commencement time; or

                     (b)  collected after the commencement time by that contracted service provider, or by another contracted service provider.

             (7)  Information Privacy Principles 5, 6 and 7 apply to an act done, or a practice engaged in, by a record-keeper in the capacity of outsourcing agency for a Commonwealth contract, in relation to personal information contained in a record that is deemed by section 16B to be in the possession of the outsourcing agency, rather than in the possession of a contracted service provider, only if:

                     (a) the personal information was included in the record after a time notified by the Minister in the Gazette for the purposes of this subsection; or

                     (b)  the record was transferred to the contracted service provider by the outsourcing agency after that time.

             (8)  Despite subsections (3), (4) and (6), this Act as in force immediately before the commencement time continues to have effect in relation to an act done, or a practice engaged in, by an eligible case manager, an eligible hearing service provider or a nominated AGHS company, except in so far as this Act as amended by the Privacy Amendment Act 1998 applies to the act or practice.

             (9)  In this section:

commencement time means the time at which the Privacy Amendment Act 1998 commenced.

24  After section 16

Insert:

16A   Information Privacy Principle 5—contracted service providers

                   A contracted service provider for a Commonwealth contract is to be treated as having taken an action required by Information Privacy Principle 5 in relation to particular personal information if that action has been taken by any outsourcing agency for the Commonwealth contract in relation to that personal information.

16B   Information Privacy Principles 6 and 7—deemed possession of certain records by outsourcing agencies

             (1)  If a contracted service provider for a Commonwealth contract has possession or control of a record that contains personal information, then, for the purposes of Information Privacy Principles 6 and 7:

                     (a)  the contracted service provider is taken not to have possession or control of the record; and

                     (b) the relevant outsourcing agency in relation to the record is taken to have possession of the record.

             (2)  For the purposes of this section, relevant outsourcing agency , in relation to a record, means:

                     (a) if there is only one outsourcing agency for the Commonwealth contract concerned—that agency; or

                     (b)  if there is more than one outsourcing agency for the Commonwealth contract concerned—each outsourcing agency provided under the contract with services to which the record relates.

25  At the end of paragraphs 30(3)(a), (b) and (c)

Add “and”.

26  After paragraph 30(3)(d)

Insert:

                    (da)  if the act or practice is an act or practice of a contracted service provider for a Commonwealth contract—must give a copy of the report to each outsourcing agency for the Commonwealth contract; and

27  Subsection 30(4)

After “credit provider” (last occurring), insert “, and on any agency that was given a copy of the first-mentioned report under paragraph (3)(da)”.

28  After subsection 32(2)

Insert:

          (2A)  If a report under subsection (1) or (2) relates to an act or practice of a contracted service provider for a Commonwealth contract, the Commissioner must give a copy of the report to each outsourcing agency for the Commonwealth contract.

29  At the end of section 36

Add:

             (8)  If:

                     (a)  a complaint is made about an act or practice; and

                     (b)  the complaint specifies an outsourcing agency for a Commonwealth contract, or the principal executive of such an outsourcing agency, as the respondent; and

                     (c)  after making preliminary inquiries under section 42, the Commissioner is satisfied that the act or practice was an act or practice of a contracted service provider for the Commonwealth contract;

the Commissioner may, before commencing an investigation of a matter to which the complaint relates, allow the complainant to amend the complaint to specify the contracted service provider as the respondent, instead of the outsourcing agency or the principal executive.

30  Section 37 (table items 6 to 10)

Repeal the items.

31  After paragraph 42(b)

Insert:

                 or (c)  whether the Commissioner should allow the complainant to amend the complaint as mentioned in subsection 36(8);

32  After subsection 43(1)

Insert:

          (1A)  If the respondent is a contracted service provider for a Commonwealth contract, the Commissioner must, before commencing the investigation, inform each outsourcing agency for the Commonwealth contract of the investigation.

33  After section 48

Insert:

48A   Notice to be given to outsourcing agency

             (1)  If:

                     (a)  the Commissioner decides not to investigate, or not to investigate further, a matter to which a complaint relates; and

                     (b)  a contracted service provider for a Commonwealth contract is the respondent to the complaint;

then the Commissioner:

                     (c)  must inform of the decision, and of reasons for the decision, each outsourcing agency for the Commonwealth contract that the Commissioner considers appropriate; and

                     (d)  may recommend in writing to any such outsourcing agency any measures that the Commissioner considers appropriate.

             (2)  A recommendation under paragraph (1)(b) may only be made after consultation with the outsourcing agency concerned.

             (3)  If the Commissioner makes a recommendation under paragraph (1)(b), the outsourcing agency concerned must, within 60 days of receiving the recommendation, inform the Commissioner, in writing, of any action that it proposes to take in relation to the recommendation.

34  After section 50

Insert:

50A   Substitution of respondent to complaint

             (1)  If:

                     (a)  the respondent to a complaint under section 36 is a contracted service provider for a Commonwealth contract; and

                     (b)  at any time after the complaint is made, but before the Commissioner has made a determination under section 52 in relation to the complaint, the contracted service provider:

                              (i)  dies or ceases to exist; or

                             (ii)  becomes bankrupt or insolvent, commences to be wound up, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of any property for the benefit of creditors;

the Commissioner may, if the Commissioner considers it appropriate to do so, amend the complaint to specify an outsourcing agency for the Commonwealth contract, or the principal executive of such an outsourcing agency, as a respondent to the complaint, instead of the contracted service provider.

Note 1:       The complaint still relates to the act or practice of the contracted service provider concerned.

Note 2:       Section 52A enables the Commissioner to treat an outsourcing agency as a respondent to a determination in specified circumstances.

             (2)  Before amending a complaint under subsection (1), the Commissioner must:

                     (a)  give to the outsourcing agency concerned a notice stating that the Commissioner proposes to amend the complaint and stating the reasons for the proposal; and

                     (b)  give to the outsourcing agency concerned an opportunity to appear before the Commissioner and to make submissions, orally or in writing, or both, in relation to the proposed amendment.

             (3)  If the Commissioner amends a complaint under subsection (1) after an investigation of the complaint under section 40 has commenced, the Commissioner is taken to have satisfied subsection 43(1) in relation to the outsourcing agency concerned.

35  After section 52

Insert:

52A   Substitution of respondent to determination

             (1)  This section applies if:

                     (a)  the respondent to a determination under subsection 52(1) is a contracted service provider for a Commonwealth contract; and

                     (b)  the determination includes:

                              (i)  a declaration under subparagraph 52(1)(b)(iii) that the complainant is entitled to a specified amount by way of compensation; or

                             (ii)  a declaration under subsection 52(3) that the complainant is entitled to a specified amount by way of reimbursement; and

                     (c)  at a particular time after the determination was made, the respondent:

                              (i)  dies or ceases to exist; or

                             (ii)  becomes bankrupt or insolvent, commences to be wound up, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of any property for the benefit of creditors; and

                     (d)  at that time, the complainant had not been paid the whole or part of an amount referred to in subparagraph (b)(i) or (b)(ii).

             (2)  The Commissioner may, if the Commissioner is satisfied that it would be reasonable to do so, determine in writing that, for the purposes of section 60, a specified outsourcing agency for the Commonwealth contract is taken to be the respondent to the determination under section 52.

Note:          This means that the amount owed by the contracted service provider will be a debt due by the outsourcing agency to the complainant.

             (3)  Before making a determination under subsection (2), the Commissioner must:

                     (a)  give to the outsourcing agency concerned a notice stating that the Commissioner proposes to make the determination and stating the reasons for the proposal; and

                     (b)  give to the outsourcing agency concerned an opportunity to appear before the Commissioner and to make submissions, orally or in writing, or both, in relation to the proposed determination.

36  After section 53

Insert:

53A   Notice to be given to outsourcing agency

             (1)  If the Commissioner makes a determination to which a contracted service provider for a Commonwealth contract is the respondent, the Commissioner:

                     (a)  must give a copy of the determination to each outsourcing agency for the Commonwealth contract to which the Commissioner considers it appropriate to give a copy; and

                     (b)  may recommend, by notice in writing given to such an outsourcing agency, any measures that the Commissioner considers appropriate.

             (2)  A recommendation under paragraph (1)(b) may only be made after consultation with the outsourcing agency concerned.

             (3)  If the Commissioner makes a recommendation under paragraph (1)(b), the outsourcing agency concerned must, within 60 days of receiving the notice, inform the Commissioner, in writing, of any action that it proposes to take in relation to the recommendation.

37  Subsection 54(2) (definition of agency )

Omit all the words after “include”, substitute “a contracted service provider”.

38  Subsection 57(2) (definition of agency )

Omit all the words after “include”, substitute “a contracted service provider”.

39  At the end of the Act

Add:

Schedule 3 Excluded funded services

   

1   Excluded funded services

             (1)  Treatment services provided under the Veterans’ Entitlements Act 1986 by health service providers, including medical practitioners, dentists, nurses, physiotherapists, occupational therapists, podiatrists, optometrists, chiropractors, osteopaths, social workers and psychologists.

             (2)  Services provided to an individual in the individual’s capacity as:

                     (a) a dependant of an officer or employee of the Department of Defence; or

                     (b)  a dependant of a member of the Australian Defence Force.

             (3)  Medical, para-medical and quasi-medical diagnostic and treatment services under or for the purposes of the Safety, Rehabilitation and Compensation Act 1988 .

             (4)  Services provided under funding provided (whether wholly or partly) by the Department of Health and Family Services, or by a statutory authority or other body for which the Minister for Health and Family Services is responsible, relating to the following:

                     (a)  the promotion, advancement and protection of public health, including under or for the purposes of the Therapeutic Goods Act 1989 , the Australian and New Zealand Food Authority Act 1991 and the Environment Protection (Nuclear Codes) Act 1978 ;

                     (b)  health care access;

                     (c)  the provision of child care and support for families, including families in crisis and homeless people;

                     (d)  the care, assessment and support of older people, people with disabilities and the carers of older people and people with disabilities;

                     (e)  the rehabilitation, employment and other assistance to people with disabilities, their families and their carers;

                      (f)  services provided by a community-based or volunteer organisation;

                     (g)  international health issues, including commercial activities and Australia’s dealings with international health organisations and other governments;

other than services provided by the following:

                     (h)  an eligible hearing service provider;

                      (i)  a nominated AGHS company.

             (5)  Services provided by a recipient of funding for environmental purposes, to the extent that the services are in connection with the funding.

             (6)  Services provided by a recipient of funding approved by the Antarctic Science Advisory Committee, to the extent that the services are in connection with the funding.

             (7)  Services provided to members of the public in relation to family relationships, to the extent that those services are provided by a community-based or volunteer organisation.

             (8)  Legal services provided to members of the public, to the extent that those services are provided by a community-based or volunteer organisation.

             (9)  Services provided to the Department of Communications and the Arts, or to a statutory authority or other body for which the Minister for Communications and the Arts is responsible, by a recipient of funding for the support of, or promotion of, the arts, culture, heritage or communication and in particular for the following:

                     (a)  collecting institutions (for example, libraries, museums, halls of fame and art galleries);

                     (b)  visual arts;

                     (c)  the film industry;

                     (d)  performance arts (for example, dance, theatre and music);

                     (e)  literature;

                      (f)  Public Lending Rights;

                     (g)  community broadcasting;

                     (h)  communications in regional and remote parts of Australia (including broadcasting, telecommunications and information technology);

                      (i)  public access to on-line services (for example, the Internet and intranets);

                      (j)  multimedia;

                     (k)  children’s media (for example, films and television);

                      (l)  cultural heritage (for example, heritage properties, moveable cultural heritage, sacred and secret Aboriginal relics and historic shipwrecks);

                    (m)  research into arts, culture, heritage or communications;

                     (n)  schools and training courses;

                     (o)  international aid;

                     (p)  celebration of national events (for example, Australia Day and the Centenary of Federation).

Note:          A service to an agency may consist of the provision of a service to another person (see subsection 6(1), definition of Commonwealth contract ).