House of Representatives

Explanatory Memorandum

Circulated By Authority of the Cabinet Secretary, Senator the Hon Joe Ludwig

Schedule 7 - Privacy Commissioner transition

Part 1 - Preliminary

Item 1 - Definitions

Item 1 defines a number of terms used throughout Schedule 7. The term commencement day is defined to mean the day on which the proposed Australian Information Commissioner Act commences.

Part 2 - Office holders, staff and consultants

Item 2 - Privacy Commissioner

The effect of this is to preserve the appointment of the Privacy Commissioner for the remainder of the Commissioner's term. It provides for the person holding the office as Privacy Commissioner at the time of the commencement day to become the Privacy Commissioner within the new Office of the Australian Information Commissioner, for the balance of the term of that person's appointment.

Item 3 - Staff

The effect of item 3 is to deem existing staff agreements to have been made with the Information Commissioner, thereby preserving the existing terms of employment for staff of the Office of the Privacy Commissioner.

Item 4 - Consultants

This item provides for a consultant engaged by the Privacy Commissioner before the commencement day to continue to be engaged by the Information Commissioner under the proposed Australian Information Commissioner Act.

Part 3 - Things done by, or in relation to, the Privacy Commissioner

Item 5

This item deems anything done by, or in relation to, the Privacy Commissioner to have been done by the Information Commissioner (with additional provision permitting the Minister to make a determination that exempts certain things from this provision if needed). Subitem 5(4) provides that such a determination is not a legislative instrument. The provision is merely declaratory of the law (to assist readers) and is not an exemption from the Legislative Instruments Act 2003.

Items 6 to 10

These items ensure that things being undertaken at commencement can be continued on by the Information Commissioner (in practice this will mean that any of the information officers can continue relevant things).

Part 4 - Investigations

Items 11 to 15

These items relate to the transition of investigations started by the Privacy Commissioner before the commencement day.

Part 5 - Written instruments and reporting requirements

Item 16 - References in instruments

This item provides for instruments in force before the commencement day that refer to the Privacy Commissioner to, after the commencement day, have effect as if the reference was to the Information Commissioner. Additional provision is made to permit the Minister to make a determination to preserve a reference to the Privacy Commissioner in an instrument if needed. Subitem 16(4) provides that such a determination is not a legislative instrument. The provision is merely declaratory of the law (to assist readers) and is not an exemption from the Legislative Instruments Act 2003.

Item 17 - Reporting requirements

The effect of this item is that the annual report on the operation of the Privacy Act will be completed by the Information Commissioner for that much of the relevant period that occurred before commencement (and that any outstanding reporting requirements will be fulfilled by the Information Commissioner).

Part 6 - Legal and other proceedings

Items 18 to 22

These items provide for transitional matters relating to legal and other types of proceedings involving the Privacy Commissioner, including proceedings in which the Privacy Commissioner was a party, and reviews and examinations that were being undertaken by the Privacy Commissioner. The items provide for appropriate transitions to the Information Commissioner.

Part 7 - Miscellaneous

Items 23 to 27

These items provide for various transitional matters related to the Privacy Commissioner or the Privacy Act, and also allow for regulations to be made on matters of a transitional nature relating to the Bill.