Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Privacy and Personal Information Protection
Act 1998 (PPIPA), the Government Information (Information Commissioner)
Act 2009 (GIICA), the Government Information (Public Access) Act 2009 (GIPAA)
and other Acts to provide for the following:

(a) an Information and Privacy Commission (the Commission) will be
established by merging the Office of the Information Commissioner and
Privacy NSW (with the Information Commissioner to be head of the
Commission and responsible for the management of the staff of the
Commission),

(b) the staff of the Information Commissioner and the Privacy Commissioner will
be employed in the Commission,

(c) the Privacy Commissioner will be appointed and removed in the same manner
as the Information Commissioner (with the same person not being permitted
to hold both offices),

(d) the Privacy Commissioner will report to Parliament on the operation of
PPIPA,

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Privacy and Government Information Legislation Amendment Bill 2010
Explanatory note

(e) the Privacy Advisory Committee under PPIPA will be replaced with an
Information and Privacy Advisory Committee having the function of advising
on matters relevant to the functions of the Privacy Commissioner and the
Information Commissioner,

(f) the Joint Committee on the Office of the Ombudsman and the Police Integrity
Commission (the Joint Committee) will be responsible for oversight of the
Privacy Commissioner's functions (in the same way as the Committee is
currently responsible for oversight of the Information Commissioner's
functions),

(g) the Information Commissioner will be required to consult with the Privacy
Commissioner before issuing guidelines about a privacy-related public
interest consideration against disclosure under GIPAA,

(h) the Privacy Commissioner will be required to consult with the Information
Commissioner before issuing guidelines about the information protection
principle that limits the disclosure of personal information by a public sector
agency,
        (i) the Information Commissioner will be required to consult with the Privacy
Commissioner before making a recommendation about a decision of an
agency that concerns a privacy-related public interest consideration against
disclosure under GIPAA,

(j) a right of appearance in proceedings before the Administrative Decisions
Tribunal on a review under GIPAA or PPIPA will be conferred on the Privacy
Commissioner (in relation to privacy-related public interest considerations
against disclosure) and on the Information Commissioner (in relation to the
provision of access to government information),

(k) the Minister will be required to consult with the Privacy Commissioner before
a regulation is made under GIPAA that concerns the protection of individual
privacy or a privacy-related public interest consideration against disclosure,

(l) the Joint Committee will be required to consult with the Privacy
Commissioner on any review of the public interest provisions of GIPAA that
concern a privacy-related public interest consideration,

(m) Part 6A of PPIPA (which relates to the obligation of government agencies to
amend their records) will be repealed, leaving section 15 of PPIPA as the only
mechanism in that Act for the alteration of personal information in
government records.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

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Privacy and Government Information Legislation Amendment Bill 2010
Explanatory note
Schedule 1 Amendment of Privacy and Personal
Information Protection Act 1998 No 133
Privacy Commissioner
Schedule 1 [3] aligns the procedure for the appointment, removal and staff of the
Privacy Commissioner with the procedure for the appointment, removal and staff of
the Information Commissioner. Schedule 1 [5] and [15] make consequential
amendments.

Schedule 1 [12] requires the Privacy Commissioner to report on his or her work and
activities and the operation of PPIPA to Parliament each year. Schedule 1 [13] is a
consequential amendment.

Schedule 1 [2] provides that the Privacy Commissioner's guidelines may make
provision with respect to requests for the alteration of personal information held by
a public sector agency, which includes a Minister and a Minister's personal staff.

Schedule 1 [4] requires the Privacy Commissioner to consult with the Information
Commissioner before preparing guidelines about the information protection
principle concerning limits on disclosure of personal information.

Schedule 1 [6] makes the Joint Committee responsible for the oversight of the
Privacy Commissioner's functions, as well as the Information Commissioner's
functions as is currently the case.

Information and Privacy Commission
Schedule 1 [23] provides for the transfer of staff of the Privacy Commissioner (who
are currently employed in the Department of Justice and Attorney General) to the
Information and Privacy Commission. The Commission is established by
Schedule 4.3, which renames the Office of the Information Commissioner as the
Information and Privacy Commission. The Information Commissioner is the head of
the Commission. The Commission is a merger of the Office of the Information
Commissioner with Privacy NSW.

Information and Privacy Advisory Committee
Schedule 1 [11] replaces the Privacy Advisory Committee with an Information and
Privacy Advisory Committee. The Committee will consist of the Information
Commissioner, the Privacy Commissioner and 6 part-time members who are
appointed by the Governor. Schedule 1 [16]-[21] make consequential amendments
to Schedule 2 to PPIPA, which contains provisions relating to the members and
procedures of the Committee. Schedule 1 [14] is a consequential amendment.

Amendment of records
Schedule 1 [10] repeals a Part of PPIPA that will be transferred from the Freedom
of Information Act 1989 when that Act is repealed on 1 July 2010. The Part gives a
person the right to apply for the amendment of government records that concern the

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Privacy and Government Information Legislation Amendment Bill 2010
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person's personal affairs and that are incomplete, incorrect, out of date or misleading.

Section 15 of PPIPA provides for the making of corrections to government records
for similar purposes.

Other provisions
Schedule 1 [7] and [8] provide that a person aggrieved by the conduct of a Minister
or a Minister's personal staff in relation to the alteration of personal information is
not entitled to an internal review of the conduct but is still entitled to seek a review
of the conduct by the Administrative Decisions Tribunal (the ADT).

Schedule 1 [9] requires the Privacy Commissioner to be notified by the ADT of any
applications for reviews made to the ADT and allows the Privacy Commissioner to
appear and be heard in any review proceedings. The Information Commissioner must
also be notified of any review that relates to the provision of government information
by an agency and is entitled to appear and be heard in those proceedings.

Schedule 1 [1] inserts a definition of Information Commissioner.

Schedule 1 [22] enables savings and transitional regulations to be made as a
consequence of the enactment of the proposed Act.

Schedule 2 Amendment of Government Information
(Information Commissioner) Act 2009
No 53
Schedule 2 [2] provides that the same person is not entitled to hold both the office of
Privacy Commissioner and the office of Information Commissioner.

Schedule 2 [3] provides that a person acting in the office of the Information
Commissioner, during the illness or absence of the Information Commissioner, is
also taken to be the Chairperson of the Information and Privacy Advisory Committee
during that period.

Schedule 2 [4] provides that the annual report of the Information Commissioner is
to be included as part of the annual report of the Information and Privacy
Commission. Schedule 2 [5]-[7] are consequential amendments.

Schedule 2 [1] inserts a definition of Privacy Commissioner.

Schedule 3 Amendment of Government Information
(Public Access) Act 2009 No 52
Schedule 3 [1] requires the Information Commissioner to consult with the Privacy
Commissioner before issuing guidelines about a privacy-related public interest
consideration against disclosure.

Schedule 3 [2] requires the Information Commissioner to consult with the Privacy
Commissioner before making a recommendation about a decision of an agency that
concerns a privacy-related public interest consideration against disclosure.

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Privacy and Government Information Legislation Amendment Bill 2010
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Schedule 3 [4] requires the Minister to consult with the Privacy Commissioner
before a regulation is made under GIPAA that concerns the protection of individual
privacy or a privacy-related public interest consideration against disclosure.

Schedule 3 [3] gives the Privacy Commissioner a right to appear and be heard in
ADT proceedings in relation to a review of a decision concerning a privacy-related
public interest consideration against disclosure.

Schedule 3 [5] requires the statutory review of GIPAA to include a consideration of
the relationship between GIPAA and PPIPA. Schedule 3 [6] requires the Minister
conducting the review to consult with the Privacy Commissioner, in addition to the
Information Commissioner.

Schedule 3 [7] requires the Joint Committee to consult with the Privacy
Commissioner on any review of the privacy-related public interest considerations
against disclosure.

Schedule 3 [8] inserts a definition of Privacy Commissioner.

Schedule 4 Amendment of other Acts
Schedule 4 contains consequential amendments and amendments relating to the
merging of the Office of the Information Commissioner and Privacy NSW into the
new Information and Privacy Commission.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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