House of Representatives

Explanatory Memorandum

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

Schedule 5 - Amendments consequential on the establishment of the Office of the Australian Information Commissioner

Most of the items in this Schedule are amendments consequential on the establishment of the Office of the Australian Information Commissioner and, in particular, the proposal to bring the Privacy Commissioner and the Office of the Privacy Commissioner into the Office of the Australian Information Commissioner. The Information Commissioner, as head of the Office, is to be principally vested with all the functions of the Office including the privacy functions (within the meaning of the Australian Information Commissioner Bill). For that reason, references to the Privacy Commissioner in all legislation are to be substituted with references to the Information Commissioner. This affects items 4, 5, 6, 7, 8, 9, 17, 18, 20, 21, 22, 23, 24, 25, 26, 30, 34, 39, 42, 44, 46, 48, 49, 50, 51, 52, 53, 55, 57, 58, 59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 71, 73, 74, 75.

The Information Commissioner will have the privacy functions, the FOI functions and the information commissioner functions (within the meaning of the Australian Information Commissioner Bill). A number of amendments proposed to legislation addressed in this Schedule make specific reference to the Information Commissioner's privacy functions or to the Privacy Act in order to clarify, where needed, that the relevant function is related to the Information Commissioner's responsibilities for privacy (and not the FOI or information commissioner functions). This affects items 1, 11, 15, 16, 19, 27, 29, 32, 35, 37, 41, 66, 70, 76, 77.

Some of the amendments proposed to legislation addressed in this Schedule amend secrecy provisions and have the effect of making a disclosure of information to the Information Commissioner for the purposes of the Commissioner's investigation functions a permitted disclosure. These amendments will apply to the Information Commissioner's investigation functions under the Privacy Act and under proposed Part VIIB of the FOI Act. This affects items 2, 12, 13, 14, 33, 36, 38, 78.

Item 10

This item proposes repeal of that part of subsection 4(4) of the Aviation Legislation Amendment (2008 Measures No.2) Act 2009 that authorises the Privacy Commissioner to delegate his or her powers to a member of staff for the purposes of preparing the report under section 4. The Information Commissioner will similarly have the power to make a delegation for that purpose under the Australian Information Commissioner Bill (proposed clauses 9 and 25). The amendment is consequential to the repeal of the Privacy Commissioner's delegation power effected by item 56 of this Schedule.

Items 28 and 31

These items repeal provisions in the Data-matching Program (Assistance and Tax) Act 1990 ( 'DP(AT) Act') which are now spent in operation. Under section 12 of the DP(AT) Act, the Privacy Commissioner has the function of issuing guidelines. The DP(AT) Act incorporates interim guidelines in a schedule which were to have effect up until the Privacy Commissioner issued guidelines relating to the matching of data. The Privacy Commissioner issued guidelines before 30 September 1991 as required under the Act. As the effect of the interim guidelines provision is now spent, that provision (and related provisions about the interim guidelines) are proposed for repeal. Subsection 12(2A) of the DP(AT) Act, which required certain reports to be tabled in the Parliament within certain periods, is also proposed for repeal as its operation is spent.

Items 40, 43 and 45

These items make minor amendments to the National Health Act 1953 to update provisions that are inconsistent with concepts in the Legislative Instruments Act 2003.

Item 54

This item repeals Division 1 of Part IV of the Privacy Act, which establishes the Office of the Privacy Commissioner. This Division will become redundant in light of the proposal to bring the Office of the Privacy Commissioner into the Office of the Australian Information Commissioner and to appoint the Privacy Commissioner under the Australian Information Commissioner Bill.

Item 56

This item repeals sections from the Privacy Act dealing with the non-disclosure of private information, preparation of an annual report and a delegation power. These sections are related to the operation of the Office of the Privacy Commissioner. They will become redundant in light of the proposal to bring the Office of the Privacy Commissioner into the Office of the Australian Information Commissioner and to appoint the Privacy Commissioner under the Australian Information Commissioner Bill.

Item 72

Item 72 repeals subsection 309(5) of the Telecommunications Act 1997, which is consequential to the proposal to repeal section 99 of the Privacy Act in item 56 of this Schedule.