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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Privacy
Amendment Bill 1998
No. ,
1998
(Attorney-General)
A
Bill for an Act to amend the Privacy Act 1988, and for related
purposes
9800920—682/3.3.1998—(9/98) Cat. No.
97 2700 0 ISBN 0644 156151
Contents
Disability Discrimination Act
1992 0644156151.html
Racial Discrimination Act
1975 0644156151.html
Sex Discrimination Act 1984 0644156151.html
A Bill for an Act to amend the Privacy Act 1988,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Privacy Amendment Act 1998.
This
Act commences on the 28th day after the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
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:
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:
(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:
(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:
(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:
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.
(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:
(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:
(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:
(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:
(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:
(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).
Disability
Discrimination Act 1992
1 Subsection 4(1) (definition of Commonwealth
agency)
Omit “an agency”, substitute “a Commonwealth
agency”.
Racial
Discrimination Act 1975
2 Subsection 3(1) (definition of Commonwealth
agency)
Omit “an agency”, substitute “a Commonwealth
agency”.
3 Subsection 4(1) (definition of Commonwealth
agency)
Omit “an agency”, substitute “a Commonwealth
agency”.