2011 Annual May Workshop The Australian Privacy Law Reform Project: a snapshot Karin Clark 4 May 2011
Some sources of privacy law Australian organisation Federal Legislation State Legislation Representations What is stated in: Privacy policies Privacy statements Contracts Privacy Act National Privacy Principles Information Privacy Principles Telecommunications laws (various) Victoria: Health Records Act ( Health Privacy Principles) Health Services Act (s 141) Mental Health Act (s 120A) Codes Eg, Biometrics Institute, Market and Social Research Code Common law actions For instance: Breach of confidence Defamation
The Australian Privacy Law Reform Project: a snapshot Australian Law Reform Commission (2008 Report): new single set of Privacy Principles nationally, to apply to all federal government agencies and the private sector these principles also to apply to state and territory government agencies through an intergovernmental cooperative scheme regularization of exemptions and exceptions new Privacy (Health Information) Regulations
The Australian Privacy Law Reform Project: a snapshot Commonwealth Government response to ALRC Report (2010) agree to enact a new single set of Privacy Principles the Exposure Draft Australian Privacy Principles (APPs), currently being examined by Senate Finance and Public Administration Committee (reporting date July 2011) agree to many (but not all) recommendations regarding health services and research: however draft provisions not yet available
The Australian Privacy Law Reform Project: a snapshot Some features of the new APPs (under consideration) more matters will need to be included in notifications, eg, circumstances of collection if individual is not aware, whether information will be transferred overseas substantially stricter rules about transfers of information overseas ‘sensitive’ information will include biometric information
The Australian Privacy Law Reform Project: a snapshot Government response to ALRC health privacy recommendations Health Information should be regulated in the Privacy Act, not Privacy Regulations New set of research rules to apply to public and private sector researchers, to be issued by the NHMRC in consultation with the ARC and Universities Australia: Privacy Commissioner will need to approve. New Research Rules will replace the section 95 and 95A rules currently issued by NHMRC
The Australian Privacy Law Reform Project: a snapshot Government response to ALRC health privacy recommendations Research Rules should address conditions under which personal information can be collected without consent for inclusion in research databases and registers. Research Rules should address conditions under which personal information can be collected without consent to identify research participants
The Australian Privacy Law Reform Project: a snapshot Government response to ALRC health privacy recommendations relevant elements of the National Statement on Ethical Conduct in Human Research (including review of research proposals by HRECs) to be aligned with the Act and new Research Rules, to minimize confusion for researchers not agree with ALRC’s proposal that qualifier ‘substantially’ should be removed from the public interest test Research Rules to apply to human research generally, and not just health and medical research
The Australian Privacy Law Reform Project: a snapshot Government response to ALRC health privacy recommendations agree that ‘health service” should include a service that ‘predicts’ health or “prevents” illness, injury or disability but should exclude non health related age care or disability services (note that all personal information collected by a health service is ‘health information’) some other recommendations agreed to will make the Privacy Act more consistent with the Victorian Health Records Act