Privacy and Personal Information
Protection Amendment Bill 2003
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 to transfer the Privacy Commissioner’s functions under that
Act to the Ombudsman. The Bill also amends a number of other Acts and
regulations to remove references to the Privacy Commissioner and to generally
replace those references with references to the Ombudsman.

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.

Clause 3 is a formal provision that gives effect to the amendments to the Privacy
and Personal Information Protection Act 1998 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Acts
and regulations specified in Schedule 2.

Schedule 1 Amendment of Privacy and Personal
Information Protection Act 1998
Schedule 1 [8] repeals Division 1 of Part 4 of the Act which provides for the
appointment of a Privacy Commissioner and contains provisions relating to the
staff of that office. Schedule 1 [1], [2] and [23] (to the extent that Schedule 1
[23] repeals Schedule 1 to the Act) are consequential amendments.

Schedule 1 [3] provides that the Minister may determine what is a relevant
privacy law for the purposes of section 19 (2) of the Act (which relates to the
disclosure of personal information to persons or bodies outside of New South
Wales). This function is currently exercised by the Privacy Commissioner.

Schedule 1 [4] requires the Minister to consult the Ombudsman before making
such a determination.

Schedule 1 [6] replaces certain references in the Act that relate to the Privacy
Commissioner with references to the Ombudsman so as to transfer the Privacy
Commissioner’s functions under the Act to the Ombudsman. Schedule 1 [5],
[7], [9]–[12] and [15] are consequential on the Privacy Commissioner’s
functions being transferred to the Ombudsman. Also, Schedule 1 [16] omits
provisions relating to the Privacy Commissioner that would, on the transfer of
the functions of that office to the Ombudsman, be duplicated in the Ombudsman
Act 1974.

Schedule 1 [13] provides that the Minister, instead of the Privacy
Commissioner, may make a direction under section 41 of the Act exempting a
public sector agency from complying with an information protection principle
or a privacy code of practice under the Act. Schedule 1 [14] requires the
Minister to consult the Ombudsman before making such a direction.

Schedule 1 [17] enables the Ombudsman, if a complaint is made under the
Privacy and Personal Information Protection Act 1998 that relates to the
conduct of a public sector agency, to decide not to deal with the complaint under
the Act but deal with it instead as a complaint under section 12 of the
Ombudsman Act 1974.

Schedule 1 [19] removes the Privacy Commissioner’s role in undertaking
internal reviews on behalf of the public sector agency. Schedule 1 [18] is a
consequential amendment.

Schedule 1 [20] repeals Part 7 of the Act which provides for the establishment
of a Privacy Advisory Committee. Schedule 1 [23], to the extent that it repeals
Schedule 2 to the Act, is a consequential amendment.

Schedule 1 [21] extends, by 1 year, the timeframe for the review of the Act that
must be carried out by the Minister under section 75 of the Act. Schedule 1 [22]
provides that the Minister, in undertaking the review of the Act, may not
investigate certain matters or reconsider certain decisions in relation to the
investigation of complaints under the Act.

Schedule 1 [25] enables regulations of a savings and transitional nature to be
made as a consequence of the enactment of the proposed Act. Schedule 1 [24]
and [26] insert Part headings into Schedule 4 to the Act.

Schedule 1 [27] inserts savings and transitional provisions consequent on the
enactment of the proposed Act. In particular, provision is made for the abolition
of the Privacy Advisory Committee and for references to the Privacy
Commissioner to be construed as references to the Ombudsman.

Schedule 2 Amendment of other legislation
Schedule 2 amends the Acts and regulations listed below. The amendments are
largely consequential on the transfer of the Privacy Commissioner’s functions
under the Privacy and Personal Information Protection Act 1998 to the
Ombudsman.

Children (Detention Centres) Regulation 2000
Crimes (Administration of Sentences) Regulation 2001
Crimes (Forensic Procedures) Act 2000
Defamation Act 1974
Freedom of Information Act 1989
Freedom of Information Regulation 2000
Health Records and Information Privacy Act 2002
Ombudsman Act 1974
Road Transport (Driver Licensing) Act 1998
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999
Roads Act 1993
Statutory and Other Offices Remuneration Act 1975
In particular, Schedule 2.8 [3] amends the Ombudsman Act 1974 to provide that
the conduct of public authorities in relation to alleged violations of the privacy
of persons is no longer conduct that is excluded from being the subject of a
complaint under section 12 of that Act or of an investigation by the Ombudsman
under that Act.

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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