Commonwealth Numbered Acts

PRIVACY ACT 1988 No. 119, 1988 - SCHEDULE 1

SCHEDULE 1
Section 101
AMENDMENTS OF OTHER ACTS
Freedom of Information Act 1982 Subsection 19 (4):
Omit "or 27", substitute ", 27 or 27A". After section 27:
Insert the following section: Procedure on request in respect of document
relating to personal affairs

"27A. (1) Where:

   (a)  a request has been received by an agency or Minister in respect of a
        document containing information relating to the personal affairs of a
        person (including a deceased person); and

   (b)  it appears to the officer or Minister dealing with the request, or to
        a person reviewing under section 54 a decision refusing the request,
        that the person referred to in paragraph (a), or, if that person is
        deceased, the legal personal representative of that person, might
        reasonably wish to contend that the document, so far as it contains
        that information, is an exempt document under section 41; a decision
        to grant access under this Act to the document, so far as it contains
        that information, shall not be made unless, where it is reasonably
        practicable to do so having regard to all the circumstances, including
        the application of section 19:

   (c)  the agency or Minister has given to that person or to the legal
        personal representative of that person, as the case may be, a
        reasonable opportunity of making submissions in support of a
        contention that the document, so far as it contains that information,
        is an exempt document under section 41; and

   (d)  the person making the decision has had regard to any submissions so
        made.

"(2) Where, after any submissions have been made in accordance with subsection
(1), a decision is made that the document, so far as it contains the
information referred to in paragraph (1) (a), is not an exempt document under
section 41:

   (a)  the agency or Minister shall cause notice in writing of the decision
        to be given to the person who made the submissions, as well as to the
        person who made the request; and

   (b)  access shall not be given to the document, so far as it contains the
        information referred to in paragraph (1) (a), unless:

        (i)    the time for an application to the Tribunal in accordance with
               section 59A by the person who made the submissions has expired
               and such an application has not been made; or

        (ii)   such an application has been made and the Tribunal has
               confirmed the decision.". Section 38:
Add at the end the following subsection:

"(2) Where a person requests access to a document, this section does not apply
in relation to the document so far as it contains information relating to the
person's personal affairs.". Section 48:

   (a)  Omit "section", substitute "Part".

   (b)  Omit "provided to the claimant under this Act", substitute "lawfully
        provided to the claimant, whether under this Act or otherwise,". After
        section 59:
Insert the following section: Review of certain decisions in respect of
documents relating to personal affairs "59A. (1) Where notice of a decision
that a document, so far as it contains certain information, is not an exempt
document under section 41 has been given, in accordance with subsection 27A
(2), to a person who made submissions in accordance with that section, that
person may apply to the Tribunal for a review of that decision.

"(2) Where an application is made in accordance with subsection (1):

   (a)  the provisions of this Part (other than sections 55 and 61) apply in
        like manner as they apply in relation to an application for review of
        a decision refusing to grant access to a document; and

   (b)  the agency or Minister concerned shall forthwith inform the person who
        made the request of the application.

"(3) Where:

   (a)  upon a request referred to in subsection 27A (1), a decision is made,
        after the making of submissions by a person in accordance with that
        subsection, not to grant access to the document to which the request
        relates, so far as it contains the information referred to in
        paragraph 27A (1) (a); and

   (b)  an application is made to the Tribunal for a review of the decision;
        the agency or Minister concerned shall forthwith inform the person who
        made the submissions of the application.".
Human Rights and Equal Opportunity Commission Act 1986 Subsection 3 (1):
Insert the following definition:

" 'Privacy Commissioner' means the Privacy Commissioner appointed under the
Privacy Act 1988;". Paragraph 8 (1) (c):
Omit "and". Paragraph 8 (1) (d):
Omit the paragraph, substitute the following paragraphs:

"(d) the Sex Discrimination Commissioner; and

   (e)  the Privacy Commissioner.". Subsection 8 (7):
Omit "or Sex Discrimination Commissioner", substitute ", Sex Discrimination
Commissioner or Privacy Commissioner". Subsection 20 (4):
After "shall" insert ", unless the complaint has been transferred under
subsection (4A),". After subsection 20 (4):
Insert the following subsections:

"(4A) Where:

   (a)  a complaint has been made to the Commission in relation to an act or
        practice; and

   (b)  because the Commission is of the opinion that the subject-matter of
        the complaint could be more effectively or conveniently dealt with by
        the Privacy Commissioner in the performance of the functions referred
        to in paragraph 27 (1) (a) or 28 (1) (b) or (c) of the
        Privacy Act 1988, the Commission decides not to inquire, or not to
        continue to inquire, into that act or practice; the Commission shall:

   (c)  transfer the complaint to the Privacy Commissioner;

   (d)  forthwith give notice in writing to the complainant stating that the
        complaint has been so transferred; and

   (e)  give to the Privacy Commissioner any information or documents that
        relate to the complaint and are in the possession, or under the
        control, of the Commission.

"(4B) A complaint transferred under subsection (4A) shall be taken to be a
complaint made to the Privacy Commissioner under Part V of the Privacy Act
1988.". After subsection 49 (4):
Insert the following subsection:

"(4A) Subsection (1) does not prevent the Commission, or a person acting on
behalf of the Commission, from giving information or documents in accordance
with paragraph 20 (4A) (e).".
Merit Protection (Australian Government Employees) Act 1984 After subsection
49 (1):
Insert the following subsections:

"(1A) Where:

   (a)  an application has been made to the Agency with respect to particular
        action; and

   (b)  because the Agency is of the opinion that it is more appropriate that
        the action be dealt with by the Privacy Commissioner in the
        performance of the functions referred to in paragraph 27 (1) (a) or 28
        (1) (b) or (c) of the Privacy Act 1988, the Agency decides, under
        subparagraph (1) (b) (ii) of this section, not to investigate the
        action, or not to investigate the action further; the Agency shall:

   (c)  transfer the application to the Privacy Commissioner;

   (d)  forthwith give notice in writing to the applicant stating that the
        application has been so transferred; and

   (e)  give to the Privacy Commissioner any information or documents that
        relate to the application and are in the possession, or under the
        control, of the Agency.

"(1B) An application transferred under subsection (1A) shall be deemed to be a
complaint made in writing to the Privacy Commissioner under Part V of the
Privacy Act 1988.

"(1C) In subsections (1A) and (1B), 'Privacy Commissioner' means the Privacy
Commissioner within the meaning of the Privacy Act 1988.". Paragraph 49 (3)
(a):
After "further" insert ", and subsection (1A) does not require the Agency to
transfer the application". After subsection 84 (4):
Insert the following subsection:

"(4A) Subsection (2) does not prevent the Agency, or an officer acting on
behalf of the Agency, from giving information or documents under paragraph 49
(1A) (e).".
Ombudsman Act 1976 After subsection 6 (4):
Insert the following subsections:

"(4A) Where, before the Ombudsman commences, or after the Ombudsman has
commenced, to investigate action taken by a Department or by a prescribed
authority, being action that is the subject matter of a complaint, the
Ombudsman becomes of the opinion that:

   (a)  a complaint with respect to the action has been, or could have been,
        made by the complainant to the Privacy Commissioner under Part V of
        the Privacy Act 1988; and

   (b)  the action could be more conveniently or effectively dealt with by the
        Privacy Commissioner; the Ombudsman may decide not to investigate the
        action, or not to investigate the action further, as the case may be,
        and, if the Ombudsman so decides, the Ombudsman shall:

   (c)  transfer the complaint to the Privacy Commissioner;

   (d)  forthwith give notice in writing to the complainant stating that the
        complaint has been so transferred; and

   (e)  give to the Privacy Commissioner any information or documents that
        relate to the complaint and are in the possession, or under the
        control, of the Ombudsman.

"(4B) A complaint transferred under subsection (4A) shall be deemed to be a
complaint made to the Privacy Commissioner under Part V of the Privacy Act
1988.

"(4C) In subsections (4A) and (4B), 'Privacy Commissioner' means the Privacy
Commissioner within the meaning of the Privacy Act 1988.". After subsection 35
(6):
Insert the following subsection:

"(6A) Subsection (2) does not prevent the Ombudsman, or an officer acting on
behalf of the Ombudsman, from giving information or documents under paragraph
6 (4A) (e).".