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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Privacy and Personal Information
Protection Amendment Bill 2003
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Privacy and Personal Information Protection
Act 1998 No 133 2
4 Amendment of other legislation 2
Schedule 1 Amendment of Privacy and Personal Information Protection
Act 1998 3
Schedule 2 Amendment of other legislation 9
b03-100-35.p01
New South Wales
Privacy and Personal Information
Protection Amendment Bill 2003
No , 2003
A Bill for
An Act to amend the Privacy and Personal Information Protection Act 1998 to
transfer the functions of the Privacy Commissioner to the Ombudsman; to
amend other Acts and regulations consequentially; and for other purposes.
Clause 1 Privacy and Personal Information Protection Amendment Bill 2003
1
The Legislature of New South Wales enacts:
2
1 Name of Act
3
This Act is the Privacy and Personal Information Protection
4
Amendment Act 2003.
5
2 Commencement
6
This Act commences on a day or days to be appointed by
7
proclamation.
8
3 Amendment of Privacy and Personal Information Protection Act
9
1998 No 133
10
The Privacy and Personal Information Protection Act 1998 is
11
amended as set out in Schedule 1.
12
4 Amendment of other legislation
13
Each Act and regulation specified in Schedule 2 is amended as set
14
out in that Schedule.
Page 2
Privacy and Personal Information Protection Amendment Bill 2003
Amendment of Privacy and Personal Information Protection Act 1998 Schedule 1
Schedule 1 Amendment of Privacy and Personal 1
Information Protection Act 1998 2
3
(Section 3)
4
[1] Long title
5
Omit "to provide for the appointment of a Privacy Commissioner;".
6
[2] Section 3 Definitions
7
Omit the definition of Privacy Commissioner.
8
[3] Section 19 Special restrictions on disclosure of personal
9
information
10
Omit "Privacy Commissioner" from section 19 (3).
11
Insert instead "Minister".
12
[4] Section 19 (3A)
13
Insert after section 19 (3):
14
(3A) The Minister is not to make any such determination unless the
15
Minister has consulted with the Ombudsman about the
16
proposed determination and taken into account any
17
submissions made by the Ombudsman in relation to the
18
matter.
19
[5] Section 19 (4)
20
Omit "Privacy Commissioner is, within the year following the
21
commencement of this section,".
22
Insert instead "Ombudsman is".
23
[6] Sections 31, 33 (5), 36 (2) (l), 37, 38, 39, 40, 42, 43 (1), 4551, 53 (5)
24
(b), 54 (1) and (2) and 55 (6) and (7)
25
Omit "Privacy Commissioner", "Privacy Commissioner's" and "the
26
Commissioner" wherever occurring.
27
Insert instead "Ombudsman", "Ombudsman's" and "the Ombudsman",
28
respectively.
Page 3
Privacy and Personal Information Protection Amendment Bill 2003
Schedule 1 Amendment of Privacy and Personal Information Protection Act 1998
[7] Part 4, heading 1
2
Omit "Privacy Commissioner".
3
Insert instead "Privacy functions of Ombudsman".
4
[8] Part 4, Division 1
5
Omit the Division.
6
[9] Part 4, Division 2, heading
7
Omit "Functions of Privacy Commissioner".
8
Insert instead "General functions".
9
[10] Section 36 General functions
10
Omit section 36 (1).
11
[11] Section 36 (2)
12
Omit "In particular, the Privacy Commissioner has the following
13
functions".
14
Insert instead "The Ombudsman has the following functions under this
15
Act".
16
[12] Section 37 Requirement to give information
17
Insert "under this Act" after "functions" in section 37 (1).
18
[13] Section 41 Exempting agencies from complying with principles
19
and codes
20
Omit "Privacy Commissioner, with the approval of the Minister," from
21
section 41 (1).
22
Insert instead "Minister".
Page 4
Privacy and Personal Information Protection Amendment Bill 2003
Amendment of Privacy and Personal Information Protection Act 1998 Schedule 1
[14] Section 41 (3) 1
2
Omit the subsection. Insert instead:
3
(3) The Minister is not to make a direction under this section
4
unless the Minister:
5
(a) has consulted with the Ombudsman about the proposed
6
direction and has taken into account any submissions
7
made by the Ombudsman in relation to the matter, and
8
(b) is satisfied that the public interest in requiring the
9
public sector agency to comply with the information
10
protection principle or privacy code of practice is
11
outweighed by the public interest in the Minister
12
making the direction.
13
[15] Section 42 Information about compliance arrangements
14
Omit ", New South Wales Crime Commission or Ombudsman's Office"
15
from section 42 (3).
16
Insert instead "or the New South Wales Crime Commission".
17
[16] Sections 44 and 6468
18
Omit the sections.
19
[17] Section 46 Preliminary assessment of privacy related complaints
20
Insert after section 46 (2):
21
(2A) If the subject-matter of the complaint relates to the conduct of
22
a public sector agency that is a public authority within the
23
meaning of the Ombudsman Act 1974, the Ombudsman may
24
decide not to deal with the complaint under this Division but
25
deal with it instead as a complaint under section 12 of the
26
Ombudsman Act 1974.
27
[18] Section 53 Internal review by public sector agencies
28
Omit "Except as provided by section 54 (3), the" from section 53 (4).
29
Insert instead "The".
30
[19] Section 54 Role of Ombudsman in internal review process
31
Omit section 54 (3)(5).
Page 5
Privacy and Personal Information Protection Amendment Bill 2003
Schedule 1 Amendment of Privacy and Personal Information Protection Act 1998
[20] Part 7 Privacy Advisory Committee 1
2
Omit the Part.
3
[21] Section 75 Review of Act
4
Omit "5 years" wherever occurring. Insert instead "6 years".
5
[22] Section 75 (2A)
6
Insert after section 75 (2):
7
(2A) In undertaking the review, the Minister may not:
8
(a) investigate a matter relating to particular conduct, or
9
(b) reconsider any decision of the Ombudsman to
10
investigate or not to investigate, or to discontinue the
11
investigation of, a particular complaint, or
12
(c) reconsider any finding, recommendation,
13
determination or other decision of the Ombudsman in
14
relation to a particular investigation or complaint under
15
this Act.
16
[23] Schedules 1 and 2
17
Omit the Schedules.
18
[24] Schedule 4 Savings, transitional and other provisions
19
Insert before clause 1:
Part 1 Preliminary 20
21
[25] Schedule 4, clause 1 (1)
22
Insert at the end of the subclause:
23
Privacy and Personal Information Protection Amendment Act
24
2003
25
[26] Schedule 4
26
Insert after clause 1:
Part 2 Provisions consequent on enactment of 27
this Act 28
Page 6
Privacy and Personal Information Protection Amendment Bill 2003
Amendment of Privacy and Personal Information Protection Act 1998 Schedule 1
[27] Schedule 4 1
2
Insert at the end of the Schedule with appropriate Part and clause numbers:
Part Provisions consequent on enactment of 3
Privacy and Personal Information 4
Protection Amendment Act 2003 5
6
Definition
7
In this Part:
8
amending Act means the Privacy and Personal Information
9
Protection Amendment Act 2003.
10
Saving of certain matters
11
(1) Subject to the regulations, anything done by the Privacy
12
Commissioner in relation to the initiation, preparation or
13
development of a draft privacy code of practice before the
14
commencement of Schedule 1 [8] to the amending Act is, on
15
that commencement, taken to have been done by the
16
Ombudsman.
17
(2) A complaint received by the Privacy Commissioner under this
18
Act before the commencement of Schedule 1 [8] to the
19
amending Act, but not concluded immediately before that
20
commencement, may, subject to the regulations, continue to
21
be dealt with by the Ombudsman under this Act as amended
22
by the amending Act.
23
(3) Subject to the regulations, a determination by the Privacy
24
Commissioner under section 19 (3) that was in force
25
immediately before the commencement of Schedule 1 [3] to
26
the amending Act is, on that commencement, taken to be a
27
determination by the Minister.
28
(4) Subject to the regulations, a direction made by the Privacy
29
Commissioner under section 41 that was in force immediately
30
before the commencement of Schedule 1 [13] to the amending
31
Act is, on that commencement, taken to be a direction made
32
by the Minister.
Page 7
Privacy and Personal Information Protection Amendment Bill 2003
Schedule 1 Amendment of Privacy and Personal Information Protection Act 1998
Abolition of Privacy Advisory Committee 1
2
(1) The Privacy Advisory Committee is abolished.
3
(2) A person who, immediately before the commencement of
4
Schedule 1 [20] to the amending Act, held office as a member
5
of the Privacy Advisory Committee, ceases to hold office on
6
that commencement.
7
(3) A person who ceases to hold office because of subclause (2)
8
is not entitled to any remuneration or compensation because
9
of the loss of that office.
10
Office of Privacy Commissioner
11
(1) The person holding office as Privacy Commissioner
12
immediately before the commencement of Schedule 1 [8] to
13
the amending Act ceases to hold office on that
14
commencement.
15
(2) A person who ceases to hold office because of subclause (1)
16
is not entitled to any remuneration or compensation because
17
of the loss of that office.
18
Construction of references to Privacy Commissioner
19
A reference in any Act other than this Act, or in any
20
instrument made under an Act, to the Privacy Commissioner
21
(including any reference that is required to be construed as a
22
reference to the Privacy Commissioner) is to be construed as
23
a reference to the Ombudsman.
Page 8
Privacy and Personal Information Protection Amendment Bill 2003
Amendment of other legislation Schedule 2
Schedule 2 Amendment of other legislation 1
2
(Section 4)
2.1 Children (Detention Centres) Regulation 2000 3
4
[1] Clause 29 Correspondence with external bodies
5
Omit "the Privacy Commissioner," from the definition of privileged letter
6
in clause 29 (1).
7
[2] Clause 29 (3) (j)
8
Omit the paragraph.
2.2 Crimes (Administration of Sentences) Regulation 2001 9
10
Dictionary
11
Omit "the Privacy Commissioner," from paragraph (a) of the definition of
12
exempt body.
2.3 Crimes (Forensic Procedures) Act 2000 No 59 13
14
Sections 92 (2) (i) and 109 (2) (f)
15
Omit "complaint by the Privacy Commissioner" wherever occurring.
16
Insert instead "privacy-related complaint by the Ombudsman".
2.4 Defamation Act 1974 No 18 17
18
[1] Section 17B Matters under Privacy and Personal Information
19
Protection Act 1998
20
Omit section 17B (1) and (2).
21
[2] Schedule 2 Proceedings of public concern and official and public
22
documents and records
23
Omit clause 2 (11).
2.5 Freedom of Information Act 1989 No 5 24
25
Schedule 2 Exempt bodies and offices
26
Omit the matter relating to the office of Privacy Commissioner.
Page 9
Privacy and Personal Information Protection Amendment Bill 2003
Schedule 2 Amendment of other legislation
2.6 Freedom of Information Regulation 2000 1
2
Schedule 4 Public offices
3
Omit the matter relating to the Privacy Commissioner from Part 2.
2.7 Health Records and Information Privacy Act 2002 No 71 4
5
[1] Section 4 Definitions
6
Omit the definition of guidelines from section 4 (1).
7
[2] Section 4 (1), definition of "Privacy Commissioner"
8
Omit the definition.
9
[3] Sections 24 (Ministerial guidelines), 28 (2) and 29 (a) and (b) and
10
clauses 3 (2), 4 (3), 10 (1) (d) (iii), (e) (iii) and (f) (iii) and 11 (1) (d)
11
(iii), (e) (iii) and (f) (iii) of Schedule 1
12
Omit "Privacy Commissioner" wherever occurring.
13
Insert instead "Minister".
14
[4] Sections 40, 42, 4446, 47 (Reports and recommendations of
15
Ombudsman), 50 (Appearance by Ombudsman), 5961, 63, 65
16
(including the note following section 65 (3)) and 67 and clause 2
17
(Ombudsman may exempt) of Schedule 2
18
Omit "Privacy Commissioner", "Privacy Commissioner's" and "the
19
Commissioner" wherever occurring.
20
Insert instead "Ombudsman", "Ombudsman's" and "the Ombudsman",
21
respectively.
22
[5] Section 40 Preparation and making of health privacy codes of
23
practice
24
Omit "Attorney General" from section 40 (4).
25
Insert instead "Minister administering the Privacy and Personal
26
Information Protection Act 1998".
Page 10
Privacy and Personal Information Protection Amendment Bill 2003
Amendment of other legislation Schedule 2
[6] Sections 43, 48 (including the note following section 48 (1)) and 66 1
2
Omit "The Privacy Commissioner" and "the Privacy Commissioner"
3
wherever occurring.
4
Insert instead "The Ombudsman" and "the Ombudsman", respectively.
5
[7] Part 7, heading
6
Omit "Privacy Commissioner".
7
Insert instead "General functions".
8
[8] Section 58 Functions of Ombudsman under this Act
9
Omit "The Privacy Commissioner has the following functions".
10
Insert instead "The Ombudsman has the following functions under this
11
Act".
12
[9] Section 58 (b)
13
Omit "prepare and publish guidelines".
14
Insert instead "issue guidelines, following consultation with the
15
Minister,".
16
[10] Section 58, note
17
Omit the note at the end of the section.
18
[11] Section 59 Requirement to give information
19
Insert "under this Act" after "functions" in section 59 (1).
20
[12] Section 62 Exempting organisations from complying with
21
Principles and codes
22
Omit "Privacy Commissioner may, in accordance with this section," from
23
section 62 (1).
24
Insert instead "Minister may".
25
[13] Section 62 (3)
26
Omit the subsection. Insert instead:
27
(3) The Minister is not to make a direction under this section
28
unless the Minister:
Page 11
Privacy and Personal Information Protection Amendment Bill 2003
Schedule 2 Amendment of other legislation
1
(a) has consulted with the Ombudsman and the Minister
2
administering the Privacy and Personal Information
3
Protection Act 1998 about the proposed direction and
4
has taken into account any submissions made by the
5
Ombudsman or that Minister in relation the matter, and
6
(b) is satisfied that the public interest in requiring the
7
organisation to comply with the Health Privacy
8
Principle, the provision of Part 4 or the health privacy
9
code of practice is outweighed by the public interest in
10
the Minister making the direction.
11
[14] Section 63 Information about compliance arrangements
12
Omit ", New South Wales Crime Commission or Ombudsman's Office"
13
from section 63 (3).
14
Insert instead "or the New South Wales Crime Commission".
15
[15] Section 64
16
Omit the section. Insert instead:
17
64 Provisions relating to guidelines issued by Minister
18
(1) The guidelines issued by the Minister under this Act may
19
apply, adopt or incorporate any publication as in force for the
20
time being.
21
(2) Any such guidelines may, from time to time, be amended or
22
replaced. The procedure for amending or replacing guidelines
23
is the same as for the issuing of the guidelines unless the
24
Minister otherwise decides in respect of a particular
25
amendment.
26
(3) The following provisions apply in relation to guidelines
27
issued by the Minister under this Act:
28
(a) before any such guidelines are issued, an impact
29
assessment statement must be prepared,
30
(b) the draft guidelines and impact assessment statement
31
must be publicly exhibited for a period of at least 21
32
days to allow for public comment on the draft
33
guidelines,
Page 12
Privacy and Personal Information Protection Amendment Bill 2003
Amendment of other legislation Schedule 2
1
(c) the Minister is to consult with the Ombudsman about
2
the draft guidelines and take into account any
3
submissions made by the Ombudsman in relation to the
4
draft guidelines.
5
[16] Sections 70 (1) (a) (ii) and 72 (1) (b)
6
Omit "Privacy Commissioner" wherever occurring.
7
Insert instead "Ombudsman under this Act".
8
[17] Section 78 Review of Act
9
Insert after section 78 (2):
10
(2A) In undertaking the review, the Minister may not:
11
(a) investigate a matter relating to particular conduct, or
12
(b) reconsider any decision of the Ombudsman to
13
investigate or not to investigate, or to discontinue the
14
investigation of, a particular complaint, or
15
(c) reconsider any finding, recommendation,
16
determination or other decision of the Ombudsman in
17
relation to a particular investigation or complaint under
18
this Act.
19
[18] Schedule 2 Savings and transitional provisions
20
Insert at the end of clause 1 (1):
21
Privacy and Personal Information Protection Amendment Act
22
2003, but only to the extent that it amends this Act
23
[19] Schedule 3 Amendment of Privacy and Personal Information
24
Protection Act 1998
25
Omit items [9], [16], [20], [22] and [23].
26
[20] Schedule 3 [18], [21] and [25]
27
Omit "Privacy Commissioner" wherever occurring.
28
Insert instead "Ombudsman".
Page 13
Privacy and Personal Information Protection Amendment Bill 2003
Schedule 2 Amendment of other legislation
2.8 Ombudsman Act 1974 No 68 1
2
[1] Section 10 Delegation
3
Insert "under this or any other Act" after "any functions of the
4
Ombudsman" in section 10 (1).
5
[2] Section 23 Expert assistance
6
Insert "under this or any other Act" after "functions".
7
[3] Schedule 1 Excluded conduct of public authorities
8
Omit item 17.
9
[4] Schedule 1A Agencies
10
Omit "Privacy Commissioner".
2.9 Road Transport (Driver Licensing) Act 1998 No 99 11
12
Section 41 Release of photographs prohibited
13
Omit "Privacy Commissioner" from section 41 (2).
14
Insert instead "Ombudsman".
2.10 Road Transport (Safety and Traffic Management) (Road 15
Rules) Regulation 1999 16
17
Clause 126I Release of photographs prohibited
18
Omit "Privacy Commissioner" from clause 126I (2).
19
Insert instead "Ombudsman".
2.11 Roads Act 1993 No 33 20
21
Section 250A Approved camera recording devices--toll offences
22
Omit "Privacy Commissioner" from section 250A (5).
23
Insert instead "Ombudsman".
Page 14
Privacy and Personal Information Protection Amendment Bill 2003
Amendment of other legislation Schedule 2
2.12 Statutory and Other Offices Remuneration Act 1975 (1976 1
No 4) 2
3
Schedule 1 Public offices
4
Omit "Full-time Privacy Commissioner".
Page 15
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