Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM, QC, MP)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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.