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Purpose
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Privacy Amendment (Office of the Privacy Commissioner) Bill 1998
Date Introduced: 9 December 1998
House: House of Representatives
Commencement: On Proclamation, or otherwise 6 months after the date of Assent.
To establish an Office of the Privacy Commissioner independent of the Human Rights and Equal Opportunities Commission.
The Privacy Act 1988 ('the Privacy Act') gave effect to Australia's agreement to implement Guidelines adopted in 1980 by the Organisation for Economic Cooperation and Development (OECD) for the Protection of Privacy and Transborder Flows of Personal Data, as well as to its obligations under Article 17 of the International Covenant on Civil and Political Rights. The Privacy Act had a two-pronged objective: the protection of personal information in the possession of federal government departments and agencies and safeguards for the collection and use of tax file numbers (the latter was connected with the up-grading of the tax file number system following the demise of the 'Australia Card' proposal).(1)
The Privacy Act created the Office of the Privacy Commissioner as a member of the Human Rights and Equal Opportunity Commission ('HREOC'), but with the functions vested in the office rather than in the Commission.
The Privacy Commissioner has always had some areas of work and operation which have distinguished it from more 'standard' arrangements within HREOC. The internal arrangements of HREOC are currently the subject of a Bill before the Parliament, the Human Rights Legislation Amendment Bill 1998. In the years since the commencement of the Privacy Act there have been a number of additions to the Privacy Commissioner's jurisdiction. In 1989, the Privacy Commissioner was given functions in relation to spent convictions information. The following year, two additions were made in the areas of credit reporting and data matching. The data-matching jurisdiction led to the creation of a separate unit within the Privacy Commissioner's office (located in Canberra) dedicated to the oversight of the Commissioner's responsibilities under the Data-matching Program (Assistance and Tax) Act 1990.(2)
The Privacy Commissioner acquired additional functions under amendments to the National Health Act 1991 in relation to guidelines for the operation of the eligibility checking system between pharmacists and the Health Insurance Commission.
A new function was conferred on the Privacy Commissioner by the Telecommunications Act 1997 in relation to records created by telecommunications carriers, carriage service providers and others of their disclosures of customer information. The Act also provides for industry codes and standards of conduct in a range of consumer protection areas, including privacy. The Privacy Commissioner must be consulted on any privacy codes and standards.
The functions of the Privacy Commissioner are likely to be expanded if the Government introduces legislative regulation of privacy in the private sector. After various changes in policy direction (an election commitment in 1996 to extend privacy regulation to the private sector was confirmed after the election in September 1996 but was followed by an announcement from the Prime Minister in March 1997 that the Government would not legislate to extend the Privacy Act to the private sector),(3) the Federal Government announced in December 1998 that it would legislate to support and strengthen self-regulatory privacy protection in the private sector, and that a 'light-touch' legislative regime would be introduced.(4) The creation of a statutory 'Office of the Privacy Commissioner' distinct from HREOC will, arguably, facilitate the process of introducing regulation of privacy to the private sector. It will also address what has been, in some respects, an anomaly in HREOC's structure. The Explanatory Memorandum comments that there is unlikely to be any significant financial impact from the changes proposed.
Schedule 1 of the Bill proposes amendments to the Privacy Act and the Human Rights and Equal Opportunity Commission Act 1986 ('the HREOC Act'). Changes to the Privacy Act are made by proposed item 2, which establishes an 'Office of the Privacy Commissioner', to be made up of the Privacy Commissioner and staff. Proposed item 4 provides that staff are to be appointed or employed under the Public Service Act 1922, that the Commissioner has the same powers as a Secretary with respect to staff, and that the Commissioner can engage consultants. Proposed items 5, 6, 7 & 10 make terminological amendments which are consequential on the fact that staff of the Office will no longer be staff of the Human Rights and Equal Opportunity Commission.
Proposed item 8 amends section 96 of the Privacy Act so that it explicitly covers contractors for the Commission, as well as staff of the Commission. Section 96 provides for the non-disclosure of personal information acquired in the course of doing Commission work. The proposed amendment would change the phrase 'on behalf of' to 'for or on behalf of' so that anyone doing work for the Commission will be covered by the requirement not to disclose private information. Proposed items 9 & 15 also relate to section 96 of the Privacy Act and make it clear that the section is to have effect despite the changed status of staff (or consultants) working for the Privacy Commissioner.
Proposed items 11 through to 14 make minor changes to the HREOC Act to reflect the fact the Privacy Commissioner is no longer part of the Commission and staff of the Privacy Commissioner are employed by the Commissioner rather than through HREOC. There will still be a provision s43A of the HREOC Act which will give the Commission a statutory basis to provide administrative services to the Privacy Commissioner if this is deemed necessary.
Schedule 2 of the Bill proposes a minor amendment to subsection 85ZZA(3) of the Crimes Act 1914, which reflects the fact that staff of the Privacy Commissioner will now be employed directly by the Commissioner rather than through HREOC. This section of the Crimes Act provides that staff should give appropriate help to someone wanting to make a complaint to the Privacy Commissioner regarding spent convictions provisions.
Kirsty Magarey
15 February 1999
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.
ISSN 1328-8091
© Commonwealth of Australia 1999
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Published by the Department of the Parliamentary Library, 1999.