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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
Privacy Amendment (Office of the Privacy
Commissioner) Bill 1998
Date Introduced: 9 December 1998
House: House of Representatives
Portfolio: Attorney-General
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.
-
- See generally, the Privacy Commissioner's on-line documentation
at http://www.privacy.gov.au/act/index.html.
- Ibid. Much of this paragraph and the following two paragraphs
is taken from the Commissioner's site.
- Press Release 'Privacy in the Private Sector' by the
Hon Daryl Williams, AM QC MP, 12 Sept 1996 and Press
Release, 'Privacy Legislation' by the Hon John Howard, MP, 21
March 1997.
- Press Release 'Government To Strengthen Privacy
Protection' by the Attorney-General, the Hon. Daryl Williams AM QC
MP and the Minister for Communications, Information Technology and
the Arts, Senator the Hon. Richard Alston, 16 December 1998.
Kirsty Magarey
15 February 1999
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1999
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