Appendix 3
The Privacy Amendment Bill 1998
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
Contents
1 Short title 1
2 Commencement
3 Schedule(s)
Schedule 1—Amendment of the Privacy Act 1988
Schedule 2—Consequential amendment of other Acts
Disability Discrimination Act 1992
Racial Discrimination Act 1975
Sex Discrimination Act 1984
A Bill for an Act to amend the Privacy Act 1988,
and for related purposes
The Parliament of Australia enacts:
1 Short title
2 Commencement
3 Schedule(s)
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repealed as set out in the applicable items in the Schedule concerned,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.
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:
2 Subsection 6(1)
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)
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)
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)
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)
8 Subsection 6(1)
subcontractor, for a Commonwealth contract, means a
person:
(a) who is or was a party to a contract (the subcontract):
(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)
(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.
10 After section 6
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)
13 At the end of paragraph 7(1)(a)
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
17 At the end of paragraph 7(1)(f)
18 After section 7
7A Exempt acts and practices
(2) For the purposes of subsection (1), relevant outsourcing
agency means:
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:
19 After subsection 8(1)
(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
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:
(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):
(5) For the purposes of this section, a body corporate is resident
in Australia if:
21 Subsection 9(1)
After “collects”, insert “or has control over the collection
of ”.
22 After section 14
14A Transfer of personal information for purposes of Commonwealth
contracts
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.
24 After section 16
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:
(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)
26 After paragraph 30(3)(d)
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
(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)
31 After paragraph 42(b)
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
48A Notice to be given to outsourcing agency
(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
50A Substitution of respondent to complaint
(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
52A Substitution of respondent to determination
(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
(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
(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
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
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:
(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;
(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).
Schedule 2—Consequential amendment of other Acts
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”.
Sex Discrimination Act 1984
3 Subsection 4(1) (definition of Commonwealth agency)
Omit “an agency”, substitute “a Commonwealth agency”.