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1998
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
PRIVACY
AMENDMENT (OFFICE OF THE PRIVACY COMMISSIONER) BILL
1998
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Attorney-General,
the Hon. Daryl
Williams AM, QC, MP)
PRIVACY AMENDMENT (OFFICE OF THE PRIVACY COMMISSIONER) ACT 1998
OUTLINE
This Bill
creates an Office of the Privacy Commissioner as a separate statutory authority.
Currently the Privacy Commissioner is a member of the Human Rights and Equal
Opportunities Commission (“the Commission”). There is no other
change to the functions or powers of the Privacy
Commissioner.
FINANCIAL IMPACT
STATEMENT
The Bill is not expected to have any
significant financial impact.
Clause 1 - Short
title
1. This clause provides that the Act may
be cited as the Privacy Amendment (Office of the Privacy Commissioner) Act
1998.
Clause 2 -
Commencement
2. This clause provides for the
commencement of the Act. Subclause (1) provides that, subject to clause 2, the
Act commences on a day to be fixed by
Proclamation.
3. Subclause (2) provides for the
automatic commencement of the Act if it has not been proclaimed within a
specified period of time.
Clause 3 -
Schedules
4. This is the operative clause which
gives effect to the amendments set out in the Schedules to the
Act.
SCHEDULE 1 - OFFICE OF THE PRIVACY COMMISSIONER
Part 1 - Privacy Act 1988
Item 1 - Part IV
(heading)
5. This item amends the heading of
Part IV to reflect the establishment of the new Office of the Privacy
Commissioner.
Item 2 - Division 1 of Part IV
(heading)
6. This item amends the heading of
Division 1 to reflect the establishment of the new Office of the Privacy
Commissioner.
7. The item inserts new section 19
which establishes an Office of the Privacy Commissioner and provides that the
Office is to consist of the Privacy Commissioner and the staff referred to in
section 26A of the Privacy Act. Section 26A is a new section inserted by this
Act.
Item 3 - Section 19 (last
occurring)
8. This item renumbers existing
section 19 as section 19A to accommodate the insertion of the provision
establishing the Office of the Privacy Commissioner as new section 19.
Item 4 - After section
26
9. This item inserts a provision providing
that the staff of the Privacy Commissioner must be employed under the Public
Service Act 1922, that the Commissioner has the powers of a Secretary under
the Public Service Act 1922 in relation to his or her staff and that the
Commissioner may engage consultants of suitable qualifications and experience on
terms and conditions determined by the
Commissioner.
Item 5 - Paragraph
36(4)(a)
10. Currently, staff assisting the
Privacy Commissioner are staff of the Commission. Existing paragraph 36(4)(a)
places a duty on such staff to assist a person making a complaint to the Privacy
Commissioner. The amendment places this duty on the staff of the Privacy
Commissioner, to reflect the fact the staff assisting the Privacy Commissioner
will no longer be employed by the Commission but by the Privacy
Commissioner.
Item 6 - Paragraph
83(a)
11. Paragraph 83(a) provides that a
function of the Privacy Advisory Committee is to advise the Commissioner on
matters relevant to his or her functions on its own initiative, or when
requested by the Commission. The amendment reflects the establishment of the
separate Office of the Privacy Commissioner by providing that such advice may be
requested by the Commissioner instead of the Commission.
Item 7 - Section
96
12. This item amends references, wherever
occurring, in section 96 to the staff referred to in section 43 of the Human
Rights and Equal Opportunities Act 1986 to reflect the fact that the staff
assisting the Privacy Commissioner will no longer be employed by the Commission
but by the Privacy Commissioner. Section 96 places an obligation on the staff
referred to in relation to non-disclosure of private
information.
Item 8 - Section
96
13. The amendment effected by this item is
by way of clarification. The insertion of the words ‘for or’ before
‘on behalf of the Commissioner’, wherever occurring, is intended to
make clear that the obligation of non-disclosure of private information
contained in section 96 applies to contractors engaged by the Privacy
Commissioner.
Item 9 - At the end of subsection
96(1) (after the penalty)
14. This item inserts
a note signposting the continuing obligation in relation to non-disclosure of
private information under section 96 on persons who are or were members of the
staff of the Commission before the amendments in this Act come into effect. The
continuing obligation is imposed by item
15.
Item 10 - Section
99
15. This item amends a reference in section
99 to the staff of the Commission to reflect the fact the staff assisting the
Privacy Commissioner will no longer be employed by the Commission but by the
Privacy Commissioner. As amended, section 99 will allow the Commissioner to
delegate to a member of his or her staff or a member of the staff of the
Ombudsman certain powers conferred on the Commissioner by the Privacy
Act.
Part 2 - Human Rights and Equal Opportunity Commission Act 1986
Item 11 - At the end of paragraph
8(1)(d)
16. This item adds the word
‘and’ to correct an inadvertent
oversight.
Item 12 - Paragraph
8(1)(e)
17. This item removes the Privacy
Commissioner from the Commission. The Privacy Commissioner will no longer
function as part of the Commission. The Privacy Commissioner will function as
the head of his or her own Office as established by the amendments in Part 1
above.
Item 13 -
Subsection 8(7)
18. Subsection 8(7) deals with
the effect of a vacancy on the functions and powers of the Commission. This
item amends the provision to reflect the fact that the Privacy Commissioner will
no longer be a member of the Commission.
Item 14
- Section 43A
19. This item amends section 43A
to reflect the fact that the Privacy Commissioner will be engaging his or her
own staff, rather than being assisted by the staff of the Commission.
Part 3 - Transitional
Item 15 - Section 96 still applies to pre-commencement
staff
20. This item ensures that the
obligations under section 96, placed on persons employed by the Commission
before the amendments to section 96 of the Privacy Act contained in this Bill
come into effect, continue.
SCHEDULE 2 - CONSEQUENTIAL AMENDMENT
Crimes Act
1914
Item 1 - Subsection
85ZZA(3)
21. This item amends a reference in
subsection 85ZZA(3) of the Crimes Act 1914 to the staff of the Commission
to reflect the fact that the staff assisting the Privacy Commissioner will no
longer be employed by the Commission but by the Privacy Commissioner. As
amended, subsection 85ZZA(3) will place a duty on the staff of the Privacy
Commissioner to give appropriate help to a person who wishes to make a complaint
to the Privacy Commissioner and wants help in formulating the
complaint.