Commonwealth Numbered Regulations - Explanatory Statements Commonwealth Numbered Regulations - Explanatory Statements[Index] [Search] [Download] [Related Items] [Help]
PRIVACY (PRIVATE SECTOR) REGULATIONS 2001 2001 NO. 266
EXPLANATORY STATEMENTSTATUTORY RULES 2001 No. 266
Issued by the authority of the Attorney-General
Privacy Act 1988
Privacy Amendment (Private Sector) Act 2000
Privacy (Private Sector) Regulations 2001
Subsection 100(1) of the Privacy Act 1988 (the Act) provides for the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 7A will be inserted in the Act by the Privacy Amendment (Private Sector) Act 2000. Subsection 7A(1) enables the National Privacy Principles contained in the Act to apply to acts and practices of some government agencies that have been exempted from the operation of the Information Privacy Principles in the Act. This is effected by treating the acts and practices of the agencies as if they were acts and practices of organisations. Subsection 7A(2) provides that Regulations may prescribe an agency for the purposes of subsection 7A(1) only if it is listed in Part 1 of Schedule 2 to the Freedom of Information Act 1982. Regulation 4 prescribes the Australian Government Solicitor and the Australian Industry Development Corporation as agencies. Those agencies are listed in Part 1 of Schedule 2 to the Freedom of Information Act 1982.
Subparagraph 18BB(3)(a)(i) of the Act will be inserted in the Act by the Privacy Amendment (Private Sector) Act 2000. It states that if a (privacy) code sets out procedures for making and dealing with complaints, the (Privacy) Commissioner may approve a privacy code if he is satisfied that the procedures meet the prescribed standards.
The remaining Regulations prescribe the standards referred to in subparagraph 18BB(3)(a)(i) of the Act.
The prescribed standards will:
• be based on The Benchmarks for Industry-Based Customer Dispute Resolution Schemes, which were prepared by The Treasury and released by the then Minister for Customs and Consumer Affairs, Senator the Hon Chris Ellison, in 1997;
• not contain any standard that is not in the Benchmarks;
• impose requirements relating to the broad categories of Accessibility, Independence, Fairness, Accountability, Efficiency and Effectiveness;
• not reproduce some of the reporting requirements that the Benchmarks impose on the 'overseeing entity' because the Act already contains reporting requirements; and
• only apply to those privacy codes which set out procedures for making and dealing with complaints.
Details of the Regulations are set out in the Attachment.
The Privacy Amendment (Private Sector) Act 2000 comes into effect on 21 December 2001. Paragraph 4(1)(a) of the Acts Interpretation Act 1901 provides that when an Act is not to come into operation immediately upon its enactment, and is expressed to amend another Act in such a manner that the other Act, as amended, will confer power to make an instrument of a legislative or administrative character, including regulations, then unless the contrary intention appears, the power may be exercised. That paragraph further provides that anything may be done for the purpose of enabling the exercise of the power or of bringing the instrument into effect, before the Act concerned comes into operation as if it had come into operation.
The Regulations commence on the commencement of Schedule 1 to the Privacy Amendment (Private Sector) Act 2000.
Attachment
Privacy (Private Sector) Regulations 2001
Regulation 1 sets out the name of the Regulations.
Regulation 2 provides that the Regulations commence on the commencement of Schedule 1 to the Privacy Amendment (Private Sector) Act 2000.
Regulation 3 defines "Act" as meaning the Privacy Act 1988.
Regulation 4 prescribes the Australian Government Solicitor and the Australian Industry Development Corporation as agencies for the purposes of subsection 7A(2) of the Act.
Regulation 5 prescribes standards for the purposes of subparagraph 18BB(3)(a)(i) of the Act. The standards relate to complaint-handling procedures and are contained in Schedule 1.
SCHEDULE 1 - PRIVACY CODES - PRESCRIBED STANDARDS FOR PROCEDURES RELATING TO COMPLAINTS
Part 1 - General
Clause 1.1 defines the object of the schedule. The schedule contains standards that must be met by complaint-handling procedures set out in a privacy code. These procedures apply to complaints made to an independent adjudicator appointed under a privacy code (rather than to a participating organisation's internal complaint-handling procedures).
Clause 1.2 defines complaint, independent adjudicator, participating organisation and respondent organisation.
Part 2 - Accessibility
Clause 2.1 states the principle and purpose of the "accessibility" standard. The purpose of the accessibility standard is to ensure that the complaint resolution scheme promotes its existence on an equitable basis. The scheme should be readily available to customers by promoting knowledge of its existence, being easy to use and having no cost barriers.
Clause 2.2 requires material about the complaint-handling procedures to be in writing and express in simple terms how to access the procedures; how the procedures work; the kinds of complaints with which the procedures deal; and any restrictions on the complaints that can be dealt with using the procedures.
Clause 2.3 requires that the existence of the complaint-handling procedures be promoted to the classes of individuals to whom they are relevant using the media or other appropriate means.
Clause 2.4 outlines when material about the complaint-handling procedures must be made available. Sub-clause 2.4(1) requires material about the complaint-handling procedures to be made available when a complaint is made and to anyone else who asks about the complainthandling procedures. Sub-clause 2.4(2) requires that material about the complaint-handling procedures is made available to customers of participating organisations where: a customer is not satisfied in whole or in part with the outcome of the internal complaints mechanism of a participating organisation; a participating organisation refuses to deal with a complaint; or the time period within which the internal complaints mechanism is expected to produce an outcome has expired, whichever first occurs. Sub-clause 2.4(3) specifies the time at which material must be made available under sub-clause 2.4(2).
Clause 2.5 is intended to ensure that the complaint-handling procedures are easily accessible. Sub-clause 2.5(1) requires customers of participating organisations to have nation-wide access to the procedures. Sub-clause 2.5(2) requires the procedures to ensure that appropriate facilities and assistance are provided for disadvantaged complainants or those with disabilities. Sub-clause 2.5(3) ensures that complainants can make initial contact orally or in writing, although sub-clause 2.5(4) requires that the complaint must ultimately be reduced to writing.
Clause 2.6 requires that complainants do not pay any application or other fee or charge before a complaint is dealt with or at any stage in the process.
Clause 2.7 is intended to ensure that complaint-handling staff have the appropriate training and states their role in assisting the complainant. Sub-clause 2.7(1) requires complaint-handling staff members to have the ability to handle customer complaints and be provided with adequate training in complaint-handling. Sub-clause 2.7(2) requires complaint-handling staff members to explain to complainants in simple terms: how the procedures work; the major areas with which the procedures deal; any restrictions on the complaints that can be dealt with using the procedures; and the applicable timelines. Sub-clause 2.7(3) requires complainthandling staff to assist complainants to subsequently reduce a complaint to writing, where complainants need assistance to do so.
Clause 2.8 requires the complaint handing procedures to be user-friendly. Sub-clause 2.8(1) requires the procedures to be simple for complainants to understand and easy to use. Paragraph 2.8(2)(a) requires the complaint-handling procedures to use appropriate techniques including conciliation, mediation and negotiation in attempting to settle complaints. Paragraph 2.8(2)(b) discourages a legalistic, adversarial approach at all stages.
Clause 2.9 requires the independent adjudicator to decide whether a complainant's case is to be presented orally or in writing at the determination stage, and allows for complainants to be supported by another person at any stage in the procedures.
Clause 2.10 emphasises the informality of any proceedings before a code adjudicator. Subclause 2.10(1) discourages the use of legal representatives before the code adjudicator, except in special circumstances. Sub-clause 2.10(2) provides the opportunity for both parties to be legally represented where one party is so allowed. Sub-clause 2.10(3) provides for the respondent organisation to pay the legal costs of complainants where the organisation is the first party to request to be legally represented and the adjudicator agrees to that request.
Part 3 - Independence
Clause 3.1 states the principle and purpose of the "independence" standard. The purpose of the independence standard is to ensure that the complaint-handling procedures and decisions made under those procedures are objective and unbiased and are seen to be objective and unbiased (that is, independent from all participating organisations).
Clause 3.2 is designed to ensure that adjudicators appointed under a privacy code are independent from all participating organisations. Sub-clause 3.2(1) requires that an adjudicator appointed under a privacy code be appointed for a fixed term. Subclauses 3.2(2) and 3.2(3) prevent an adjudicator under a privacy code from being selected directly by organisations bound by that code, and ensure that adjudicators are not answerable to participating organisations for determinations. Sub-clause 3.2(4) states that an adjudicator must not have any relationship with participating organisations that would give rise to a perceived or actual conflict of interest.
Clause 3.3 requires that complaint-handling staff be independent from all participating organisations. Sub-clause 3.3(1) prohibits complaint-handling staff from being selected directly by participating organisations. Sub-clause 3.3(2) requires that complaint-handling staff not be answerable to participating organisations for the operation of the complaint-handling procedures.
Clause 3.4 requires that complaint-handling procedures provide that the operation of the procedures is formally overseen by an overseeing entity. It describes the composition and functions of the overseeing entity. Sub-clause 3.4(1) requires that the composition of the overseeing entity balances the interests of the class of individuals to whom the procedures are relevant (referred to in sub-clauses 3.4(1) and 3.4(2) as relevant individuals), the relevant industry and, if appropriate, other stakeholders. Sub-clause 3.4(2) requires that a person appointed as a member of the overseeing entity must be capable of reflecting the views of relevant individuals and have the confidence of those individuals and any relevant organisations. Sub-clause 3.4(3) states that the functions of the overseeing entity are to appoint or dismiss an adjudicator under the relevant code and to make recommendations in relation to and approve the complaint-handling procedures' budget.
Clause 3.5 requires that the complaint-handling procedures have sufficient funding to enable complaints to be dealt with in accordance with these standards, the requirements in the Privacy Act 1988 and the Privacy Commissioner's guidelines made under paragraph 18BF(1)(b) of that Act.
Part 4 - Fairness
Clause 4.1 states the principle and purpose of the "fairness" standard. The purpose of the fairness standard is to ensure that determinations made under the complaint-handling procedures are fair and are seen to be fair. The complaint-handling procedures should therefore observe the principles of procedural fairness; determinations should be based on the information before the adjudicator; and there should be specific criteria upon which determinations are based.
Clause 4.2 requires complaint-handling staff to advise complainants of their right to access the legal system or other redress mechanisms at any stage (including the role of the Privacy Commissioner in reviewing determinations, where relevant) if they are dissatisfied with any of the decisions made by the staff in dealing with the complaint or with the adjudicator's determination.
Clause 4.3 requires complaint investigation to be conducted with procedural fairness. Subclause 4.3(1) states this requirement and subclause 4.3(2) elaborates on it by requiring that each party be allowed to put its case to the adjudicator, be told of the other party's arguments and be given an opportunity to respond to them.
Clause 4.4 sets out the adjudicator's power to require information or documents relevant to a complaint and the rights of participating organisations and complainants in relation to providing that information or documents. Sub-clause 4.4(1) provides that if the adjudicator requests in writing that a complainant provide information or documents to the adjudicator that he or she believes is relevant to the investigation of the complaint, the complainant may, but is not compelled, to provide that information. Sub-clause 4.4(2) states that a participating organisation must give an adjudicator information or documents relevant to the investigation of a complaint, if the adjudicator has requested that information in writing unless the exceptions in subclauses 4.4(3) or (4) apply. Sub-clause 4.4(3) relieves a participating organisation from compliance with sub-clause 4.4(2) if the information or document contains material identifying a third party, unless that third party has consented to the disclosure to the adjudicator of either the whole document or the document with appropriate deletions. Sub-clause 4.4(4) provides the other exception to sub-clause 4.4(3), namely, that a participating organisation is not required to provide information or documents in response to an adjudicator's written request if that disclosure is prohibited by a law of the Commonwealth, a State or a Territory. Sub-clause 4.4(5) gives the adjudicator the discretion to remove from a document provided by a participating organisation, references to a third party, before the adjudicator gives it to the complainant. Sub-clause 4.4(6) defines the term third party (that is used in subclauses 4.4(3) and 4.4(5)) as a person, other than the complainant or the organisation responding to the complaint, to whom the respondent organisation owes a duty of confidentiality or privacy.
Clause 4.5 requires and describes how an adjudicator must arrive at a fair and reasonable determination of a complaint. It also describes his or her obligation to inform the parties of the decision in a timely manner. Sub-clause 4.5(1) imposes the obligation to make a fair and reasonable determination by requiring the adjudicator to take into account specific matters. These are good industry practice, any relevant industry code of practice, the privacy code under which the adjudicator was appointed, any relevant precedents and any relevant law. Subclause 4.4(2) imposes on the adjudicator the obligation to inform the parties of his or her determination and the reasons for it, as soon as practicable.
Clause 4.6 imposes an obligation on both parties to a complaint to keep confidential any information obtained either during the investigation of a complaint or in the course of any alternative dispute resolution procedures. Sub-clause 4.6(1) provides that an exception to this obligation is where the information or document is required to be disclosed under a law of the Commonwealth, or of a State or Territory, or under any other clause in the Schedule.
Part 5 - Accountability
Clause 5.1 states the principle and purpose of the "accountability" standard. The purpose of the accountability standard is to ensure public confidence in the complaint-handling procedures and allow assessment and improvement of their performance and that of participating organisations. The complaint-handling procedures should operate in a publicly accountable way, including by publishing determinations and information about complaints.
Clause 5.2 sets out the detail that must be provided in relation to determinations made by an independent adjudicator and to whom that detail must be provided. Sub-clause 5.2(1) requires that written reports of determinations be regularly provided to participating organisations and any other interested person or body. Sub-clause 5.2(2) requires those reports to contain any detail about determinations that is necessary for the purpose of educating participating organisations and consumers; and demonstrating consistency and fairness in decision-making. Sub-clause 5.2(3) clarifies that written reports of determinations may consist of a concise summary of a determination and reasons for so determining, but do not need to include all the evidence, arguments and reasoning of each complaint. Sub-clause 5.2(4) prevents written reports of determinations from naming the parties involved or containing other personal information (that is, information or an opinion from which an individual's identity may reasonably be ascertained).
Part 6 - Efficiency
Clause 6.1 states the principle and purpose of the "efficiency" standard. The purpose of the efficiency standard is to give customers and participating organisations confidence in the complaint-handling procedures and to ensure the operation of the procedures provides value for its funding. To this end, the operation of the complaint-handling procedures should keep track of complaints and ensure the appropriate process or forum deals with complaints.
Clause 6.2 describes the types of complaints that can be dealt with under the complainthandling procedures, the transfer of complaints to more appropriate forums and a mechanism to inform participating organisations about systemic problems. Sub-clause 6.2(1) outlines the steps that must be taken by the parties prior to the matter being heard by the adjudicator. It requires the complainant to firstly raise the issue with the respondent organisation and the parties to attempt settlement using the organisation's internal complaints mechanism. If the respondent organisation has either failed to deal with the complaint to the complainant's satisfaction, or has not done so within the time frame required by paragraph 18BF(1)(b) of the Act, the complaint may then be dealt with under the complaint-handling procedures, provided two conditions are met. Firstly, the complaint must not be being dealt with by the Commissioner or in another dispute resolution forum and secondly, it must be the kind of complaint that can be dealt with by these procedures. Sub-clause 6.2(2) provides that where the adjudicator considers that a complaint would be more appropriately dealt with in another forum, the adjudicator must not deal with the complaint and the procedures must provide for a method to transfer that complaint to the other forum. Subclause 6.2(3) states that the complaint-handling procedures must have mechanisms for referring systemic industry problems, that become apparent from complaints, to relevant participating organisations. Sub-clause 6.2(4) empowers an adjudicator to exclude vexatious or frivolous complaints.
Clause 6.3 relates to time limits for dealing with complaints. Sub-clause 6.3(1) requires the complaint-handling procedures to set reasonable time limits for each of its processes that facilitate speedy resolution without compromising quality decision-making. Sub-clause 6.3(2) requires the procedures to incorporate mechanisms to ensure that the time limits are complied with as far as possible.
Clause 6.4 relates to keeping track of complaints. Sub-clause 6.4(1) requires the complainthandling procedures to include a system for tracking the progress of complaints. Sub-clause 6.4(2) requires complaint-handling staff to keep the parties informed about the progress of their complaint.
Part 7 - Effectiveness
Clause 7.1 states the principle and purpose of the "effectiveness" standard. The purpose of the effectiveness standard is to promote customer confidence in the complaint-handling procedures and ensure that the procedures fulfil their role. To this end, the procedures should have appropriate and comprehensive terms of reference and periodic independent reviews of their performance.
Clause 7.2 provides that the scope of the complaint-handling procedures and the role of the adjudicator must be clear. It also provides that the scope of the procedures must be sufficient to deal with the majority of complaints in the relevant industry.
Clause 7.3 states that it is a requirement of the complaint-handling procedures that the participating organisations all establish internal complaints mechanisms. It also provides that the complaint-handling staff must have the capacity to advise participating organisations about those internal complaints mechanisms.
Clause 7.4 requires mechanisms to be established to encourage participating organisations to comply with the complaint-handling procedures.
Clause 7.5 requires the complaint-handling procedures to establish a review system. Subclause 7.5(1) provides that the first review (by an independent person) must take place within three years of the establishment of the procedures and regularly thereafter. Sub-clause 7.5(2) states that the review must be undertaken in consultation with relevant stakeholders. Subclause 7.5(3) requires the reviewer to consider whether the standards set out in the Schedule have been complied with, whether the scope of the matters dealt with is appropriate, whether the parties are satisfied with the procedures' operation, whether the dispute resolution processes used by the scheme are just and reasonable and whether there is equitable access to the scheme. Sub-clause 7.5(4) requires the results of the review to be made available to the relevant stakeholders.