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This is a Bill, not an Act. For current law, see the Acts databases.

KEEPING JOBS FROM GOING OFFSHORE (PROTECTION OF PERSONAL INFORMATION) BILL 2009

2008-2009
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Keeping Jobs from Going Offshore
(Protection of Personal Information) Bill
2009
No. , 2009
(Senator Fielding)
A Bill for an Act to protect jobs in Australia by
preventing the transfer of personal information to
other countries without consent, and for related
purposes
i Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009 No.
, 2009
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3 Objects
...............................................................................................
2
4 Interpretation
of
this Act .................................................................... 2
Part 2--Consent to transfer personal information
5
5
Consent requirements for the transfer of personal
information ........................................................................................ 5
6
Countries certified as having adequate protection ............................. 5
7
Countries not certified as having adequate protection ....................... 5
8
Consent decision not to affect business relationship .......................... 6
9
Certification of privacy protections ................................................... 6
Part 3--Call centre disclosure requirements
7
10
Call centre disclosure requirements ................................................... 7
11
Foreign call centre ............................................................................. 7
Part 4--Interaction with Privacy Law
8
12 Interaction
with
Privacy Law ............................................................. 8
13 Interference
with
privacy
...................................................................
8
Part 5--Interaction with Trade Practices Law
9
14 Interaction
with
Trade Practices Law ................................................ 9
15
Intentional breach of consent condition ............................................. 9
Part 6--Miscellaneous
10
16 Regulations
......................................................................................
10
Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009 No. ,
2009 1
A Bill for an Act to protect jobs in Australia by
1
preventing the transfer of personal information to
2
other countries without consent, and for related
3
purposes
4
The Parliament of Australia enacts:
5
Part 1--Preliminary
6
7
1 Short title
8
This Act may be cited as the Keeping Jobs from Going Offshore
9
(Protection of Personal Information) Act 2009.
10
Part 1 Preliminary
Section 2
2 Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009
No. , 2009
2 Commencement
1
This Act commences on the day after it receives the Royal Assent.
2
3 Objects
3
The objects of this Act are:
4
(a) to ensure that personal information held by businesses in
5
Australia is not transferred overseas without the informed
6
consent of the individual to whom the information relates;
7
and
8
(b) to protect employment in Australia by reducing the
9
outsourcing of customer service and call centre jobs overseas.
10
4 Interpretation of this Act
11
(1) In this Act:
12
interference with the privacy of an individual has the meaning
13
given by the Privacy Act, affected by section 13 of this Act.
14
mandatory industry code has the meaning given by the Trade
15
Practices Act, affected by section 15 of this Act.
16
organisation has the meaning given by section 6C of the Privacy
17
Act.
18
personal information has the meaning given by section 6 of the
19
Privacy Act, affected by subsection (2).
20
Privacy Act means the Privacy Act 1988.
21
Privacy Law includes:
22
(a) the Privacy Act;
23
(b) the Information Privacy Principles and National Privacy
24
Principles set out in that Act;
25
(c) any approved privacy code, Code of Conduct or industry
26
standard agreed, made or authorised under that Act;
27
Preliminary Part 1
Section 4
Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009 No. ,
2009 3
(d)
any guidelines or regulations made under that Act.
1
telecommunications network has the meaning given by section 7
2
of the Telecommunications Act 1997.
3
telemarketing call has the meaning given by section 5 of the Do
4
Not Call Register Act 2006.
5
Trade Practices Act means the Trade Practices Act 1974.
6
Trade Practices Law includes:
7
(a) the Trade Practices Act;
8
(b) any industry code made or authorised under that Act;
9
(c) any guidelines made under that Act;
10
(d) any regulations made under that Act.
11
transfer, in relation to personal information, means communicate,
12
send, trade or republish that information by any means whatsoever,
13
including by transmitting the information over a
14
telecommunications network from a source located in Australia or
15
an external Territory so that it can be accessed by a person in a
16
foreign location.
17
voice call has the meaning given by section 4 of the Do Not Call
18
Register Act 2006.
19
(2)
Personal information held by an organisation in relation to an
20
individual includes, but is not restricted to:
21
(a) personal identifiers, including:
22
(i) any name by which the individual is or has been known,
23
including any family name;
24
(ii) date of birth;
25
(iii) mother's maiden name;
26
(b) secondary identifiers, including:
27
(i) street address, postal address or post-office box number;
28
(ii)
phone
number;
29
(iii)
e-mail
address;
30
(iv) driver's licence number;
31
(v) tax file number;
32
Part 1 Preliminary
Section 4
4 Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009
No. , 2009
(vi)
medicare
number;
1
(c) any identifying information allocated by an organisation, or
2
by any third party, including any customer identification
3
number or code;
4
(d) financial information, including:
5
(i) credit card details;
6
(ii) bank account details;
7
(iii) details of any financial transaction;
8
(e)
medical
records;
9
(f)
passwords;
10
(g) any information relating to any business transaction between
11
the individual and the organisation or any third party.
12
(3) Unless the contrary intention appears, any other term used in this
13
Act which is defined in the Privacy Act 1988 has the meaning
14
given in that Act.
15
Consent to transfer personal information Part 2
Section 5
Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009 No. ,
2009 5
Part 2--Consent to transfer personal information
1
2
5 Consent requirements for the transfer of personal information
3
(1) An organisation in Australia or an external Territory (the
4
transferring organisation) must not transfer personal information
5
about an individual to an organisation in a foreign country (the
6
receiving organisation) unless the requirements of this Part have
7
been met.
8
(2) To avoid doubt, subsection (1) applies in each of the following
9
cases:
10
(a) where there is no connection between the two organisations;
11
(b) where the receiving organisation is a part, however
12
described, of the transferring organisation;
13
(c) where the receiving organisation is an associated entity, or a
14
part of an associated entity, of the transferring organisation;
15
(d) where the receiving organisation is performing any function
16
under contract to the transferring organisation.
17
(3) To avoid doubt, the requirements of this Part apply in addition to
18
the requirements of National Privacy Principle 9.
19
6 Countries certified as having adequate protection
20
If the receiving organisation is located in a country that is certified
21
as having adequate privacy protections, the transferring
22
organisation may transfer personal information about an individual
23
to the receiving organisation only if:
24
(a) the transferring organisation has informed the individual of
25
the intention to transfer personal information; and
26
(b) the individual has not objected to the transfer.
27
7 Countries not certified as having adequate protection
28
If the receiving organisation is located in a country that is not
29
certified as having adequate privacy protections, the transferring
30
Part 2 Consent to transfer personal information
Section 8
6 Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009
No. , 2009
organisation may transfer personal information about an individual
1
to the receiving organisation only if:
2
(a) the transferring organisation has specifically informed the
3
individual, in writing, of:
4
(i) the intention to transfer information to a country that is
5
not certified as having adequate privacy protections; and
6
(ii) the content of the information proposed to be
7
transferred; and
8
(iii) the purpose of transferring the information; and
9
(iv) the identity of the receiving organisation or
10
organisations; and
11
(b) the individual has consented to the transfer, in writing, not
12
more than 12 months prior to the transfer of the information.
13
8 Consent decision not to affect business relationship
14
An organisation must not:
15
(a) deny the provision of goods or services to an individual; or
16
(b) change the terms of a business relationship with an
17
individual; or
18
(c) refuse to enter into a business relationship with an individual;
19
based upon that individual's decision whether or not to consent to
20
the transfer of personal information under this Act.
21
9 Certification of privacy protections
22
(1) The Minister may certify that a country has adequate privacy
23
protections, if the Minister is satisfied that the law of the country
24
effectively upholds principles for the fair handling of information
25
that are substantially similar to the National Privacy Principles.
26
(2) In determining whether to certify a country in accordance with
27
subsection (1), the Minister may seek the advice of the Office of
28
the Privacy Commissioner.
29
(3) The Minister must, from time to time, publish a list of the countries
30
that have been certified in accordance with subsection (1).
31
Call centre disclosure requirements Part 3
Section 10
Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009 No. ,
2009 7
Part 3--Call centre disclosure requirements
1
2
10 Call centre disclosure requirements
3
(1) If a person makes a voice call to an organisation, and that call is
4
answered by, or transferred to, a foreign call centre, the person
5
responding to the call must identify the city and country in which
6
the call centre is located.
7
(2) If a person receives a telemarketing call from or on behalf of an
8
organisation, which originates from a foreign call centre, the
9
person initiating the call must identify the city and country in
10
which the call centre is located.
11
(3) For the purposes of this section, a voice call to any telephone
12
number related to, or advertised in any medium as being related to,
13
an organisation is a voice call to that organisation, unless the
14
contrary is proved
15
11 Foreign call centre
16
For the purposes of this Part an organisation is a foreign call
17
centre for another organisation if,
18
(a) the first organisation makes, receives or deals with voice
19
calls for or on behalf of the second organisation; and
20
(b) the first organisation meets the definition of receiving
21
organisation in relation to the second organisation for the
22
purposes of section 5.
23
Part 4 Interaction with Privacy Law
Section 12
8 Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009
No. , 2009
Part 4--Interaction with Privacy Law
1
2
12 Interaction with Privacy Law
3
(1) This Act is intended to supplement the Privacy Law to enhance the
4
protection afforded personal information, particularly in relation to
5
transborder data flows.
6
(2) Nothing in this Act removes or reduces any obligation placed on
7
any individual or organisation by the Privacy Law.
8
13 Interference with privacy
9
(1) For the purposes of the Privacy Law, an act or practice that effects
10
a transfer of personal information about an individual in
11
contravention of section 5 is an interference with the privacy of
12
the individual.
13
(2) An act or practice that may be an interference with the privacy of
14
an individual because of this section may be dealt with in
15
accordance with Parts V and VI of the Privacy Act.
16
Note:
Parts V and VI of the Privacy Act deal with complaints; investigations
17
by the Privacy Commissioner and others; determinations, including
18
entitlement to compensation; and enforcement.
19
Interaction with Trade Practices Law Part 5
Section 14
Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009 No. ,
2009 9
Part 5--Interaction with Trade Practices Law
1
2
14 Interaction with Trade Practices Law
3
(1) This Act is intended to supplement the Trade Practices Law to
4
enhance consumer protection in relation to the fair handling of
5
personal information.
6
(2) Nothing in this Act removes or reduces any obligation placed on
7
any individual or organisation by the Trade Practices Law.
8
15 Intentional breach of consent condition
9
(1) For the purposes of the Trade Practices Law, an organisation that:
10
(a) intentionally effects a transfer of personal information about
11
an individual in contravention of section 5; or
12
(b) takes any action in contravention of section 8; or
13
(c) fails to make a disclosure required by section 10;
14
is taken to have contravened a mandatory industry code.
15
(2) An organisation that is taken to have contravened a mandatory
16
industry code because of this section may be dealt with in
17
accordance with Part VI of the Trade Practices Act.
18
Note:
Part VI of the Trade Practices Act deals with enforcement and
19
remedies.
20
(3) This section has effect only in relation to organisations which are
21
corporations within the meaning of section 4 of the Trade Practices
22
Act.
23
Part 6 Miscellaneous
Section 16
10 Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009
No. , 2009
Part 6--Miscellaneous
1
2
16 Regulations
3
The Governor-General may make regulations prescribing matters:
4
(a) required or permitted by this Act to be prescribed; or
5
(b) necessary or convenient to be prescribed for carrying out or
6
giving effect to this Act.
7

 

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