Commonwealth: Data Availability and Transparency Act 2022 (Cth)

Data Availability and Transparency Act 2022 No. 11, 2022 Compilation No. 4 Compilation date: 11 December 2024 Includes amendments: Act No. 128, 2024 About this compilation This compilation This is a compilation of the Data Availability and Transparency Act 2022 that shows the text of the law as amended and in force on 11 December 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Chapter 1—Preliminary Part 1.1—Introduction 1 Short title 2 Commencement 3 Objects 4 Simplified outline of this Act 5 Act binds the Crown 6 Extension to external Territories 7 Extraterritorial operation Part 1.2—Definitions 9 Definitions 10 References to access to data 11 Entity definitions 11A The data sharing project Chapter 2—Authorisations Part 2.1—Introduction 12 Simplified outline of this Chapter Part 2.2—Authorisations 13 Authorisation for data custodian to share public sector data 13A Authorisation for accredited user to collect and use data 13B Authorisation for ADSP to act as intermediary 13C Authorisation for data custodian to collect and use submitted data 14 Penalties for unauthorised sharing 14A Penalties for unauthorised collection or use Part 2.3—Data sharing purposes and principles 15 Data sharing purposes 16 Data sharing principles Part 2.4—Privacy protections 16A General privacy protections 16B Purpose‑specific privacy protections 16C Project involving use of de‑identification or secure access data services 16D Project involving complex data integration services 16E Privacy coverage condition 16F Compliance with APP‑equivalence term Part 2.5—When sharing is barred 17 When sharing is barred Part 2.6—Data sharing agreements 18 Data sharing agreement 19 Requirements to be met by all data sharing agreements Part 2.7—Allowed access to output of project 20A Allowed access: providing data custodian of source data with access to ADSP‑enhanced data or output 20B Allowed access: providing access to output for validation or correction 20C Allowed access: providing access to or releasing output in other circumstances 20D Allowed access: sharing under section 13 20E Exit of ADSP‑enhanced data or output of project 20F Data custodian of output of project Part 2.8—Relationship with other laws 22 Other authorisations for data custodians not limited 23 Authorisations override other laws Chapter 3—Responsibilities of data scheme entities Part 3.1—Introduction 24 Simplified outline of this Chapter Part 3.2—General responsibilities 25 No duty to share but reasons required for not sharing 26 Comply with rules and data codes 27 Have regard to guidelines 30 Comply with conditions of accreditation 31 Report events and changes in circumstances affecting accreditation to Commissioner 32 Not provide false or misleading information 33 Registration of data sharing agreements 34 Assist Commissioner in relation to annual report Part 3.3—Data breach responsibilities 35 Definition of data breach 36 Take steps to mitigate data breach 37 Interaction with Part IIIC of the Privacy Act 1988 (notification of eligible data breaches) 38 Notify Commissioner of non‑personal data breach Chapter 4—National Data Commissioner and National Data Advisory Council Part 4.1—Introduction 39 Simplified outline of this Chapter 40 Commissioner to have regard to objects of Act Part 4.2—National Data Commissioner Division 1—Establishment, functions and powers 41 National Data Commissioner 42 Functions 43 Advice related functions 44 Guidance related functions 45 Regulatory functions 45A Education and support related functions 46 Application of finance law 47 Staff 48 Contractors 49 Consultants 50 Delegation by Commissioner 51 Independence of Commissioner 52 Commissioner not to be sued Division 2—Terms and conditions etc. 53 Appointment 54 General terms and conditions of appointment 55 Other paid work 56 Remuneration 57 Leave of absence 58 Resignation 58A Disclosure of interests to Minister 59 Termination of appointment 60 Acting appointments Part 4.3—National Data Advisory Council 61 Establishment and function of Council 62 Membership of Council 63 Appointment of members 64 Term of appointment 65 Remuneration and allowances 66 Leave of absence 67 Disclosure of interests to Minister or Commissioner 68 Disclosure of interests to Council 69 Resignation of members 70 Termination of appointment of members 71 Other terms and conditions of members 72 Procedures Chapter 5—Regulation and enforcement Part 5.1—Introduction 73 Simplified outline of this Chapter Part 5.2—Accreditation framework Division 1—Accreditation 74 Accreditation 75 Notice of accreditation decision 76 Application for accreditation 77 Criteria for accreditation 77A General provisions relating to accreditation Division 2—Conditions of accreditation 77B Conditions of accreditation 78 Imposition, variation or removal of conditions of accreditation by accreditation authority 79 Notice before decision relating to conditions of accreditation 80 Notice of conditions Division 3—Suspension and cancellation of accreditation 81 Suspension or cancellation of accreditation 82 Notice before decision about suspension or cancellation 83 Notice of suspension or cancellation 83A Lifting of suspension Division 4—Renewal of accreditation of ADSPs 84 Renewal 85 Notice of renewal decision 85A Application for renewal Division 5—Rules and further information 86 Rules relating to the accreditation framework 87 Further information or evidence Part 5.3—Complaints Division 1—Scheme Complaints 88 Making scheme complaints 89 Respondents 90 Communicating with complainant 91 Dealing with complaints 92 Grounds for not dealing with complaints 93 Admissibility of things said or done in conciliation Division 2—General complaints 94 Making general complaints 95 Dealing with complaints 96 Admissibility of things said or done in conciliation Part 5.4—Assessments and investigations 99 Assessments 100 Notices of assessment 101 Investigations 102 Determination on completion of investigation 103 Notices relating to investigation 103A Recommendations Part 5.5—Regulatory powers and enforcement 104 Power to require information and documents 105 Legal professional privilege 106 Limits on power to require information and documents 107 Transfer of matters to appropriate authority 108 Authorisation for Commissioner to disclose and receive information 109 Monitoring powers 110 Investigation powers 112 Directions 113 Civil penalty provisions 114 Infringement notices 115 Enforceable undertakings 116 Injunctions Chapter 6—Other matters Part 6.1—Introduction 117 Simplified outline of this Chapter Part 6.2—Review of decisions 118 Reviewable decisions 119 Applications for reconsideration of decisions made by delegates of the reviewer 120 Reconsideration by reviewer 121 Deadline for reconsideration 122 Review by the Administrative Review Tribunal Part 6.3—Extension of authorisations and attribution of conduct 123 Designated individuals and designation 124 Extension of authorisations to share, collect or use data 125 Other things an entity may or must do under the data sharing scheme 125A Contraventions by entities of civil penalty provisions and other non‑criminal breaches of this Act 125B Offences by entities against this Act Part 6.4—Data sharing scheme instruments 126 Data codes 127 Guidelines 128 Register of ADSPs 129 Register of accredited users 130 Register of data sharing agreements 131 Recognition of external dispute resolution schemes 132 Approved forms 133 Rules 134 Regulations Part 6.5—Other matters 135 Disclosure of scheme data in relation to information‑gathering powers 135A Data held by National Archives of Australia 136 Geographical jurisdiction of civil penalty provisions and offences 137 Authorised officers and individuals authorised to do particular things 137A Delegation by Minister 138 Annual report 139 Charging of fees by Commissioner 140 Charging of fees by data scheme entities 141 Commonwealth not liable to pay a fee 142 Periodic reviews of operation of Act 143 Sunset of the data sharing scheme Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to authorise the sharing of public sector data, and for related purposes Chapter 1—Preliminary Part 1.1—Introduction 1 Short title This Act is the Data Availability and Transparency Act 2022. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. The whole of this Act The day after this Act receives the Royal Assent. 1 April 2022 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Objects The objects of this Act are to: (a) serve the public interest by promoting better availability of public sector data; and (b) enable the sharing of public sector data consistently with the Privacy Act 1988 and appropriate security safeguards; and (c) enhance integrity and transparency in sharing public sector data; and (d) build confidence in the use of public sector data; and (e) establish institutional arrangements for sharing public sector data. 4 Simplified outline of this Act This Act establishes a data sharing scheme under which Commonwealth bodies are authorised to share their public sector data with accredited users, and accredited users are authorised to collect and use the data, in a controlled way. The sharing, collection and use of data must be part of a project that is for one or more of the defined data sharing purposes, and must be done consistently with the data sharing principles and under a registered data sharing agreement that meets the requirements of this Act. Privacy protections apply to the sharing of personal information. Data may be shared directly with an accredited user, or through an intermediary accredited for the purpose (called an ADSP, short for accredited data service provider). The National Data Commissioner is the regulator of the data sharing scheme and also has the function of providing education and support in relation to handling public sector data. The Commissioner's regulatory functions include accrediting ADSPs and users other than Commonwealth, State and Territory bodies. The Minister has the function of accrediting such bodies as users. The Commissioner also has functions relating to handling complaints and powers to require information and to assess, monitor and investigate data scheme entities. Data scheme entities have responsibilities under the Act. A range of enforcement options are available to the Commissioner. This Act mainly relies for its constitutional basis on the matters set out in subsection 13(4) (constitutional requirements for authorisation for data custodian to share public sector data) (but see also subsections 42(2) and 61(2)). 5 Act binds the Crown (1) This Act binds the Crown in each of its capacities. (2) However, this Act does not make the Crown liable to be prosecuted for an offence. (3) To avoid doubt, subsection (2) does not prevent the Crown from being liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act. 6 Extension to external Territories This Act and the Regulatory Powers Act as it applies in relation to this Act extend to every external Territory. 7 Extraterritorial operation (1) This Act, and the Regulatory Powers Act as it applies in relation to this Act, extend to acts, omissions, matters and things outside Australia. Note: Geographical jurisdiction for civil penalty provisions and offences is dealt with in section 136. (2) This Act, and the Regulatory Powers Act as it applies in relation to this Act, have effect in relation to acts, omissions, matters and things outside Australia subject to: (a) the obligations of Australia under international law, including obligations under any international agreement binding on Australia; and (b) any law of the Commonwealth giving effect to such an agreement. Part 1.2—Definitions 9 Definitions In this Act: access has a meaning affected by section 10. accreditation authority means: (a) for an entity applying for accreditation, or accredited, as an ADSP—the Commissioner; or (b) for a Commonwealth body, State body or Territory body, or the Commonwealth or a State or Territory, applying for accreditation, or accredited, as an accredited user—the Minister; or (c) for another entity applying for accreditation, or accredited, as an accredited user—the Commissioner. accredited entity: see subsection 11(4). accredited user: see subsection 11(4). ADSP: see subsection 11(4). ADSP‑controlled access: see subsection 16B(6). ADSP‑enhanced data: see subsection 11A(3). adverse or qualified security assessment means an adverse security assessment, or a qualified security assessment, within the meaning of Part IV of the Australian Security Intelligence Organisation Act 1979. ancillary contravention of a civil penalty provision means a contravention that arises out of the operation of section 92 of the Regulatory Powers Act. ancillary offence has the same meaning as in the Criminal Code. APP entity has the same meaning as in the Privacy Act 1988. APP‑equivalence term: see subsection 16E(2). appointed member: see paragraph 62(1)(e). approved contract: see subsection 123(3). approved form for a provision of this Act, the rules or a data code means a form approved by the Commissioner for the purposes of the provision under section 132. Australia, when used in a geographical sense, includes the external Territories. Australian aircraft has the same meaning as in the Criminal Code. Australian entity means an entity that is any of the following: (a) a Commonwealth body, a State body or a Territory body; (b) the Commonwealth, a State or a Territory; (c) an Australian university. Australian ship has the same meaning as in the Criminal Code. Australian university means a registered higher education provider: (a) that, for the purposes of the Tertiary Education Quality and Standards Agency Act 2011, is registered in the "Australian University" provider category; and (b) that is established by or under a law of the Commonwealth, a State or a Territory. authorised officer: see section 137. biometric data: (a) means personal information about any measurable biological or behavioural characteristic relating to an individual that could be used to identify the individual or verify the individual's identity; and (b) includes a biometric template containing representations of information mentioned in paragraph (a). Note: Data that is not personal information cannot be biometric data. For example, an eye colour, by itself, is not biometric data. breach: a data scheme entity breaches this Act if the data scheme entity engages in conduct that contravenes, or is inconsistent with, this Act. Circuit Court means the Federal Circuit and Family Court of Australia (Division 2). civil penalty provision has the same meaning as in the Regulatory Powers Act. Commissioner means the National Data Commissioner referred to in section 41. Commonwealth body: (a) means: (i) a Commonwealth entity, or a Commonwealth company, within the meaning of the Public Governance, Performance and Accountability Act 2013; or (ii) any other person or body that is an agency within the meaning of the Freedom of Information Act 1982; but (b) does not include an Australian university. complex data integration service: see subsection 16D(3). condition of accreditation means a condition: (a) prescribed by the rules for the purposes of subsection 77B(1); or (b) imposed under section 74, 78 or 84. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. Council means the National Data Advisory Council established by section 61. court/tribunal order means an order, direction or other instrument made by: (a) a court; or (b) a judge (including a judge acting in a personal capacity) or a person acting as a judge; or (c) a magistrate (including a magistrate acting in a personal capacity) or a person acting as a magistrate; or (d) any other person or body that has the power to act judicially under a law of the Commonwealth or a State or Territory; or (e) a tribunal; or (f) a member or an officer of a tribunal; and includes an order, direction or other instrument that is of an interim or interlocutory nature. data means any information in a form capable of being communicated, analysed or processed (whether by an individual or by computer or other automated means). data breach: see section 35. data code: see subsection 126(1). data custodian: see subsection 11(2). data scheme entity: see subsection 11(1). data service means any operation performed on or in relation to data, at any stage from collection or creation to destruction. data sharing agreement: see section 18. data sharing purpose: see subsection 15(1). data sharing scheme means this Act and the regulations, rules, data codes and guidelines made under it. Defence Department means the Department administered by the Minister administering the Defence Act 1903. de‑identification data service: see subsection 16C(3). de‑identified has the same meaning as in the Privacy Act 1988. delivery of government services: see subsection 15(1A). designated individual: see section 123. designation: see section 123. electronic communication means a communication of information in any form by means of guided electromagnetic energy, unguided electromagnetic energy or both. enforcement related purpose: see subsection 15(3). engage in conduct means: (a) do an act; or (b) omit to do an act. entity means any of the following: (a) a Commonwealth body, a State body or a Territory body; (b) a body politic; (c) an Australian university; (d) a body corporate; (e) an individual. excluded entity: see subsection 11(3). exit: see section 20E. Federal Court means the Federal Court of Australia. final output of a project means the output specified as the agreed final output in the data sharing agreement for the project (see paragraph 19(3)(b)). government entity: see subsection 125A(4). guidelines means guidelines made under section 127. offence against this Act includes an offence against section 6 of the Crimes Act 1914, or Chapter 7 of the Criminal Code, that relates to this Act. Note: Ancillary offences that relate to this Act are also offences against this Act (see section 11.6 of the Criminal Code). operational data means: (a) data about information sources or operational activities or methods available to an agency mentioned in paragraph 17(2)(b); or (b) data about particular operations that have been, are being or are proposed to be undertaken by such an agency, or about proceedings relating to those operations. output: see subsection 11A(1). paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise). personal information has the same meaning as in the Privacy Act 1988. Note: Information that has been de‑identified is no longer personal information. point: see subsection 136(9). precluded purpose: see subsections 15(2) and (4). primary contravention of a civil penalty provision means a contravention that does not arise out of the operation of section 92 of the Regulatory Powers Act. primary offence has the same meaning as in the Criminal Code. project: see section 11A. public sector data means data lawfully collected, created or held by or on behalf of a Commonwealth body, and includes ADSP‑enhanced data. registered: a data sharing agreement is registered if the agreement is included in the register of data sharing agreements under subsection 130(4). regulatory function means a function set out in subsection 45(1). Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. release: see subsection 10(1). reviewable decision: see section 118. reviewer: see section 118. rules means rules made under subsection 133(1). scheme data means: (a) any copy of data created for the purpose of being shared under section 13 as part of a project and held by the entity that is the sharer mentioned in that section, whether or not the data has yet been shared; or (b) output of a project, other than a copy that has exited the data sharing scheme (see section 20E); or (c) ADSP‑enhanced data of a project, other than a copy that has exited the data sharing scheme (see section 20E). secure access data service: see subsection 16C(4). security has the same meaning as in the Australian Security Intelligence Organisation Act 1979. share: see subsection 10(2). source data: see paragraph 19(3)(a). State body means any of the following, but does not include an Australian university: (a) a department of a State; (b) a body established for a public purpose by or under a law of a State, other than a body prescribed by the rules; (c) the holder of a statutory office appointed under a law of a State, other than an office prescribed by the rules. submit: see subsection 20A(3). Territory body means any of the following, but does not include an Australian university: (a) a department of a Territory; (b) a body established for a public purpose by or under a law of a Territory, other than a body prescribed by the rules; (c) the holder of a statutory office appointed under a law of a Territory, other than an office prescribed by the rules. use includes handle, store and provide access. Note: Examples of use of data by an accredited user include developing and modifying output. 10 References to access to data (1) For the purposes of this Act, a reference to an entity providing access to data includes a reference to the entity: (a) providing another entity with access to the data; and (b) providing open access to the data (releasing the data). (2) This Act uses the expression share to refer to data custodians of public sector data providing accredited entities with access to data under this Act. (3) For the purposes of this Act, if an entity provides another entity with access to data: (a) the entity that provides access is taken to retain a copy of the data; and (b) the entity to which access is provided is taken to collect a copy of the data. 11 Entity definitions (1) The following are data scheme entities: (a) data custodians of public sector data; (b) accredited entities. (2) An entity is a data custodian if the entity: (a) is a Commonwealth body; and (b) is not an excluded entity; and (c) either: (i) controls public sector data (whether alone or jointly with another entity), including by having the right to deal with that data; or (ii) has become the data custodian of output of a project in accordance with section 20F. (2A) If a data custodian of public sector data shares the data with an intermediary under section 13 as part of a project, the data custodian is taken also to be the data custodian of any ADSP‑enhanced data of the project. (3) Each of the following is an excluded entity: (aa) the National Data Commissioner and any APS employee made available to the National Data Commissioner under section 47; (a) the National Anti‑Corruption Commission; (ab) the Inspector of the National Anti‑Corruption Commission; (b) the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002; (ba) the Australian Federal Police; (c) that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation; (d) the Australian National Audit Office; (e) the Australian Secret Intelligence Service; (f) the Australian Security Intelligence Organisation; (g) the Australian Signals Directorate; (h) that part of the Defence Department known as the Defence Intelligence Organisation; (i) the Inspector‑General of Intelligence and Security; (j) the Office of the Commonwealth Ombudsman; (k) the Office of National Intelligence. (4) An entity accredited under section 74 as an: (a) accredited user (an accredited user); or (b) ADSP (short for accredited data service provider) (an ADSP); is an accredited entity. Note 1: Accredited users are able to collect and use shared data (including by creating output they can provide other entities with access to, or release) in accordance with an applicable data sharing agreement. ADSPs are expert intermediaries who can assist data custodians to prepare and share data appropriately. Note 2: Excluded entities cannot be accredited (see subsection 74(1)). (5) A data scheme entity may do things under this Act in different capacities. In each of those capacities, the entity is taken to be a different data scheme entity. Among other things, this means that a data scheme entity may enter into a data sharing agreement to which it is party in more than one capacity. Note: For example, the same entity may be party to the agreement in its capacity as data custodian of data to be shared and in its capacity as the accredited entity with which the data is shared. 11A The data sharing project Project, and output and ADSP‑enhanced data of project (1) A project involves at least both of the following elements: (a) an entity (the sharer) shares data with another entity (the user), either directly or through another entity (the intermediary); (b) the user collects the data and uses the output of the project, which is: (i) the copy of the data collected by the user; and (ii) any data that is the result or product of the user's use of the shared data. Note 1: The sharer's authorisation to share data is in section 13. The user's authorisation to collect and use data is in section 13A. Note 2: A project may involve sharing of data by multiple sharers, if multiple entities are data custodians of the data. (2) If, for the purposes of sharing data under section 13, data services are performed in relation to data, or data is created, by or on behalf of the sharer, the project also involves performing the services or creating the data. (3) If the sharer shares data with the user through an intermediary, the project also involves both of the following elements: (a) the sharer shares the data with the intermediary; (b) the intermediary collects the data and uses the ADSP‑enhanced data of the project, which is: (i) the copy of the data collected by the intermediary; and (ii) any data that is the result or product of the intermediary's use of the shared data. Note: The sharer's authorisation to share data with the intermediary, and the intermediary's authorisation to share data with the user on behalf of the sharer, are in section 13. The intermediary's authorisation to collect data from the sharer and use it is in section 13B. (4) If the sharer is provided with access to output or ADSP‑enhanced data of the project, the project also involves the sharer's collection and use of the output or ADSP‑enhanced data. Note: The sharer's authorisation to collect and use the output or ADSP‑enhanced data of the project is in section 13C. Combining projects (5) A data sharing agreement may treat multiple projects as a single project, as long as they all have the same data sharing purpose or purposes and the same sharer and user and (if applicable) intermediary. Successive projects (6) If the user in a project shares data that is output of the project as part of a later project: (a) the copy retained by the user continues to be output of the earlier project; and (b) the copy collected by the user in the later project is output of the later project in accordance with paragraph (1)(b); and (c) if the sharing in the later project is done through an intermediary—the copy collected by the intermediary in the later project is ADSP‑enhanced data of the later project in accordance with paragraph (3)(b). Note: A data sharing agreement may allow the user to share output under section 13 as part of a later project (see section 20D). Chapter 2—Authorisations Part 2.1—Introduction 12 Simplified outline of this Chapter Under the data sharing scheme, Commonwealth bodies are authorised to share their public sector data with accredited users, and accredited users are authorised to collect and use the data, in a controlled way. Data may be shared with an accredited user directly, or through an intermediary accredited for the purpose (called an ADSP, short for accredited data service provider). The sharing, collection and use of data must be part of a project that is for one or more of the defined data sharing purposes, and must be done consistently with the data sharing principles and a registered data sharing agreement that meets the requirements of this Act. Privacy protections apply to the sharing of personal information. Commonwealth bodies must be the data custodian of public sector data they share (i.e. they must control the data, including by having the right to deal with it). Some Commonwealth bodies are excluded from the scheme. Some sharing of data is barred (e.g. if the sharing would contravene a prescribed law or an agreement). An accredited user's authorisation to use data may in some circumstances extend to providing access to output of the project to other entities, which may or may not be accredited. There are limits on the circumstances in which data sharing agreements may allow this. If sharing, collection or use is authorised by this Chapter, the authorisation has effect despite any other law of the Commonwealth or a State or Territory. Data custodians and accredited entities must comply with the rules made by the Minister and data codes made by the National Data Commissioner and meet other responsibilities under this Chapter. This Act mainly relies for its constitutional basis on the matters set out in subsection 13(4) (constitutional requirements for authorisation for data custodian to share public sector data) (but see also subsections 42(2) and 61(2)). Part 2.2—Authorisations 13 Authorisation for data custodian to share public sector data (1) An entity (the sharer) is authorised to share data with another entity (the user), either directly or through another entity (the intermediary), if all of the following apply: (a) the constitutional requirements in subsection (4) are met; (b) the data custodian requirements in subsection (2) are met; (c) the project the sharing is part of is covered by a registered data sharing agreement that is in effect and that meets the requirements of this Act; (d) the sharing is in accordance with the data sharing agreement; (e) the sharer is satisfied that the project is consistent with the data sharing principles; (f) the user is an accredited user and its accreditation is not suspended; (g) if the data shared with the user includes personal information—the privacy coverage condition in section 16E is met in relation to the user; (h) if the sharer shares through an intermediary—the intermediary is an ADSP and its accreditation is not suspended; (i) if the data shared with the intermediary includes personal information—the privacy coverage condition in section 16E is met in relation to the intermediary. Note: This section authorises the sharer to share its public sector data with the user and with the intermediary (if any). It also authorises the intermediary (if any) to share with the user, on behalf of the sharer, ADSP‑enhanced data of which the sharer is the data custodian. (2) The data custodian requirements are the following: (a) the data is public sector data and the sharer is the data custodian of the data; (b) if the sharer is not the only data custodian of the data—authority to share the data has been given by each other data custodian; (c) the sharing is not barred by section 17; (d) the sharing is consistent with the general privacy protections in section 16A and the purpose‑specific privacy protections in section 16B; (e) if the data shared does not include personal information—only the minimum amount of data necessary for the project to proceed is shared; (f) if the requirement in subsection 16C(2) or 16D(2) applies—the requirement is met. Note: If sharing is done through an intermediary, it is possible that authority to share as mentioned in paragraph (2)(b) will be needed from additional data custodians of ADSP‑enhanced data of the project, before the ADSP‑enhanced data can be shared with the user. (3) Authority given by a data custodian for the purposes of paragraph (2)(b) must be given by one of the following: (a) an authorised officer of that data custodian; (b) if another data custodian is authorised to act as the agent of that data custodian—an authorised officer of the agent data custodian. (4) The constitutional requirements are that any of the following apply: (a) the data is shared with a Commonwealth body or Territory body, or the Commonwealth or a Territory; (b) the data is shared with a State body or a State, as part of a project that: (i) relates to a matter of national interest that requires national cooperation to achieve an identified national objective; or (ii) addresses an immediate need to take coordinated action in an area that will have significant national and cross‑jurisdictional effect; or (iii) occurs in the context of the Commonwealth otherwise facilitating cooperation with or between the States; (c) the data is shared as part of a project that is for a data sharing purpose set out in paragraph 15(1)(a) (delivery of government services) or (b) (informing government policy and programs), if the government concerned is or includes the Commonwealth; (d) the data is shared with a constitutional corporation as part of a project that is for the data sharing purpose set out in paragraph 15(1)(c) (research and development); (e) the data is shared by means of electronic communication; (f) the data is shared to enable analysis for statistical purposes; (g) the data is statistical information. 13A Authorisation for accredited user to collect and use data An entity (the user) is authorised to collect data shared with the user under, or purportedly under, section 13 as part of a project, or to use output of the project, if all of the following apply: (a) the project is covered by a registered data sharing agreement that is in effect and that meets the requirements of this Act; (b) the collection or use is in accordance with the data sharing agreement; (c) the user is satisfied that the project is consistent with the data sharing principles; (d) the user is an accredited user and its accreditation is not suspended; (e) if the data shared with the user includes personal information—the privacy coverage condition in section 16E is met in relation to the user; (f) if the sharing by the sharer is not authorised by section 13—the user does not know and could not reasonably be expected to know that. 13B Authorisation for ADSP to act as intermediary If an entity (the sharer) is sharing data with another entity (the user) under, or purportedly under, section 13 through another entity (the intermediary) as part of a project, the intermediary is authorised to collect data shared with it by the sharer, or to use ADSP‑enhanced data of the project, if all of the following apply: (a) the project is covered by a registered data sharing agreement that is in effect and that meets the requirements of this Act; (b) the collection or use is in accordance with the data sharing agreement; (c) the intermediary is satisfied that the project is consistent with the data sharing principles; (d) the intermediary is an ADSP and its accreditation is not suspended; (e) if the data shared with the intermediary includes personal information—the privacy coverage condition in section 16E is met in relation to the intermediary; (f) if the sharing by the sharer is not authorised by section 13—the intermediary does not know and could not reasonably be expected to know that. 13C Authorisation for data custodian to collect and use submitted data If an entity (the sharer) has shared data with the user under section 13 as part of a project, either directly or through an intermediary, the sharer is authorised to collect output or ADSP‑enhanced data of the project from the user or intermediary, or to use output or ADSP‑enhanced data of the project collected from the user or intermediary, if both of the following apply: (a) the project is covered by a registered data sharing agreement that is in effect and that meets the requirements of this Act; (b) the collection or use by the sharer is in accordance with the data sharing agreement. 14 Penalties for unauthorised sharing Civil penalty provisions (1) An entity contravenes this subsection if: (a) the entity provides access to data; and (b) the provision of access is purportedly under section 13; and (c) the provision of access is not authorised by section 13. Civil penalty: 300 penalty units. (2) An individual or a body corporate contravenes this subsection if: (a) the individual or body corporate uses data; and (b) the use is a provision of access to the data by an entity under, or purportedly under, section 13; and (c) the individual has a designated relationship with the entity, or the body corporate is party to an approved contract with the entity; and (d) the individual or body corporate's use is not authorised by this Act. Civil penalty: 300 penalty units. Offences (3) An entity commits an offence if: (a) the entity provides access to data; and (b) the provision of access is purportedly under section 13; and (c) the provision of access is not authorised by section 13 and the entity is reckless with respect to that circumstance. Penalty: Imprisonment for 5 years or 300 penalty units, or both. (4) An individual or a body corporate commits an offence if: (a) the individual or body corporate uses data; and (b) the use is a provision of access to the data by an entity under, or purportedly under, section 13; and (c) the individual has a designated relationship with the entity, or the body corporate is party to an approved contract with the entity; and (d) the individual or body corporate's use is not authorised by this Act and the individual or body corporate is reckless with respect to that circumstance. Penalty: Imprisonment for 5 years or 300 penalty units, or both. 14A Penalties for unauthorised collection or use Civil penalty provisions for user or intermediary (1) An entity contravenes this subsection if: (a) the entity collects or uses data; and (b) the data is ADSP‑enhanced data, or output, of a project involving sharing data with the entity under, or purportedly under, section 13; and (c) the collection or use is not authorised by this Act. Civil penalty: (a) 300 penalty units; or (b) if subsection (2) applies—600 penalty units. (2) This subsection applies if the entity concerned is or has been an accredited entity and the contravention is serious, having regard to any of the following matters: (a) the sensitivity of the data; (b) the consequences of the contravention for entities, groups of entities or things to which the data involved in the contravention relates; (c) the level of care taken by the contravening entity in relation to the entity's responsibilities under the data sharing scheme in relation to the collection or use. (3) An individual or a body corporate contravenes this subsection if: (a) the individual or body corporate uses data; and (b) the data is ADSP‑enhanced data, or output, of a project involving sharing data with an entity under, or purportedly under, section 13; and (c) the individual has a designated relationship with the entity, or the body corporate is party to an approved contract with the entity; and (d) the individual or body corporate's use of the data is not authorised by this Act. Civil penalty: 300 penalty units. Offences for user or intermediary (4) An entity commits an offence if: (a) the entity collects or uses data; and (b) the data is ADSP‑enhanced data, or output, of a project involving sharing data with the entity under, or purportedly under, section 13; and (c) the collection or use is not authorised by this Act and the entity is reckless with respect to that circumstance. Penalty: Imprisonment for 5 years or 300 penalty units, or both. (5) An individual or a body corporate commits an offence if: (a) the individual or body corporate uses data; and (b) the data is ADSP‑enhanced data, or output, of a project involving sharing data with an entity under, or purportedly under, section 13; and (c) the individual has a designated relationship with the entity, or the body corporate is party to an approved contract with the entity; and (d) the individual or body corporate's use of the data is not authorised by this Act and the individual or body corporate is reckless with respect to that circumstance. Penalty: Imprisonment for 5 years or 300 penalty units, or both. Defence (6) Subsections (1), (3), (4) and (5) do not apply if the data collected or used is a copy of output, or ADSP‑enhanced data, that has exited the data sharing scheme, or is derived from such a copy. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code). Civil penalty provisions for sharer (7) An entity contravenes this subsection if: (a) the entity collects or uses data submitted to the entity under, or purportedly under, section 13A or 13B; and (b) the collection or use is not authorised by this Act. Civil penalty: 300 penalty units. (8) An individual or a body corporate contravenes this subsection if: (a) the individual or body corporate uses data; and (b) the data was submitted to an entity under, or purportedly under, section 13A or 13B; and (c) the individual has a designated relationship with the entity, or the body corporate is party to an approved contract with the entity; and (d) the individual or body corporate's use is not authorised by this Act. Civil penalty: 300 penalty units. Offences for sharer (9) An entity commits an offence if: (a) the entity collects or uses data submitted to the entity under, or purportedly under, section 13A or 13B; and (b) the collection or use is not authorised by this Act and the entity is reckless with respect to that circumstance. Penalty: Imprisonment for 5 years or 300 penalty units, or both. (10) An individual or a body corporate commits an offence if: (a) the individual or body corporate uses data; and (b) the data was submitted to an entity under, or purportedly under, section 13A or 13B; and (c) the individual has a designated relationship with the entity, or the body corporate is party to an approved contract with the entity; and (d) the individual or body corporate's use is not authorised by this Act and the individual or body corporate is reckless with respect to that circumstance. Penalty: Imprisonment for 5 years or 300 penalty units, or both. Relationship of collection and use civil penalty provisions and offences with other laws (11) Subsections (1) to (10) have effect despite any other law of the Commonwealth or a State or Territory, whether enacted before or after the commencement of this Act. (12) To avoid doubt, subsections (1) to (10) have effect regardless of whether a permitted general situation, or a permitted health situation, exists within the meaning of the Privacy Act 1988. Part 2.3—Data sharing purposes and principles 15 Data sharing purposes Data sharing purposes (1) The following are data sharing purposes: (a) delivery of government services; (b) informing government policy and programs; (c) research and development. Note: Data sharing agreements must specify the agreed data sharing purpose or purposes and agreed incidental purposes (if any), and prohibit collection or use of data for any other purpose, including any precluded purpose. Delivery of government services (1A) For the purposes of paragraph (1)(a), delivery of government services means the delivery of any of the following services by the Commonwealth or a State or Territory: (a) providing information; (b) providing services, other than services relating to a payment, entitlement or benefit; (c) determining eligibility for a payment, entitlement or benefit; (d) paying a payment, entitlement or benefit. Note: Making a decision under legislation about whether an individual is eligible to receive a payment, before any payment is made, is an example of delivery of government services. The purpose of making such a decision is not a precluded purpose. Precluded purposes (2) The following are precluded purposes: (a) an enforcement related purpose; (b) a purpose that relates to, or prejudices, national security within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004; (c) a purpose prescribed by the rules for the purposes of this paragraph. (3) An enforcement related purpose means any of the following purposes: (a) detecting, investigating, prosecuting or punishing: (i) an offence; or (ii) a contravention of a law punishable by a pecuniary penalty; (b) detecting, investigating or addressing acts or practices detrimental to public revenue; (c) detecting, investigating or remedying serious misconduct; (d) conducting surveillance or monitoring, or intelligence‑gathering activities; (e) conducting protective or custodial activities; (f) enforcing a law relating to the confiscation of proceeds of crime; (g) preparing for, or conducting, proceedings before a court or tribunal or implementing a court/tribunal order. Note: The purpose of verifying that a government payment previously made to a person was correctly made is an example of an enforcement related purpose. Other examples include the purpose of recovering overpayments, identifying individuals for compliance activity and identifying individuals for the purposes of exercising statutory investigation powers. (4) A purpose is not a precluded purpose within the meaning of paragraph (2)(a) or (b) if the purpose is both: (a) a data sharing purpose; and (b) a purpose that: (i) is with respect to matters that relate only in a general way to a purpose mentioned in paragraph (2)(a) or (b); and (ii) does not involve any person undertaking an activity mentioned in a paragraph of subsection (3). Preparing data for a later project (5) A project that involves sharing, collecting and using data in order to prepare (including to create) data for sharing under section 13 as part of a later project that will be for one or more of the data sharing purposes is itself taken to be a project for that or those data sharing purposes. (6) Subsection (5) applies regardless of whether the entities sharing, collecting and using the data have a particular later project in mind and whether the data is actually shared under section 13 as part of any later project. 16 Data sharing principles Project principle (1) The project principle is that the project is an appropriate project or program of work. (2) The project principle includes (but is not limited to) the following elements: (a) the project can reasonably be expected to serve the public interest; (b) the parties observe processes relating to ethics, as appropriate in the circumstances. People principle (3) The people principle is that data is made available only to appropriate persons. (4) The people principle includes (but is not limited to) the following elements: (a) access to data is only provided to individuals who have attributes, qualifications, affiliations or expertise appropriate for the access; (b) the entity sharing the data considers the following matters in relation to the entity collecting the data (the collector): (i) the collector's experience with projects involving the sharing of public sector data, under this Act or otherwise; (ii) the collector's capacity to handle public sector data securely; (iii) any data breaches, or breaches of the law relating to data, by the collector; (iv) any other matters specified in a data code. Setting principle (5) The setting principle is that data is shared, collected and used in an appropriately controlled environment. (6) The setting principle includes (but is not limited to) the following elements: (a) the means by which the data is shared, collected and used are appropriate, having regard to the type and sensitivity of the data, to control the risks of unauthorised use; (b) reasonable security standards are applied when sharing, collecting and using data. Data principle (7) The data principle is that appropriate protections are applied to the data. (8) The data principle includes (but is not limited to) the element that only the data reasonably necessary to achieve the applicable data sharing purpose or purposes is shared, collected and used. Output principle (9) The output principle is that the only output of the project is: (a) the final output; and (b) output the creation of which is reasonably necessary or incidental to creation of the final output. (10) The output principle includes (but is not limited to) the following elements: (a) the data custodian of the data and the accredited user consider: (i) the nature and intended use of the output of the project; and (ii) requirements and procedures for use of the output of the project; (b) the final output contains only the data reasonably necessary to achieve the applicable data sharing purpose or data sharing purposes. Application of data sharing principles (11) For a data scheme entity to be satisfied that the project is consistent with the data sharing principles, the entity must be satisfied that it has applied each principle to the sharing, collection or use of data in such a way that, when viewed as a whole, the risks associated with the sharing, collection or use are appropriately mitigated. Note: Entities must also comply with the rules and any data codes (see section 26) and have regard to the guidelines (see section 27). Part 2.4—Privacy protections 16A General privacy protections (1) Data that includes biometric data must not be shared unless the individual to whom the biometric data relates expressly consents to the sharing of the biometric data. (2) If data that includes personal information is shared, the data sharing agreement that covers the sharing must prohibit any accredited entity with or through which it is shared from storing or accessing, or providing access to, the ADSP‑enhanced data, or the output, of the project outside Australia. (3) If data that has been de‑identified is shared, the data sharing agreement that covers the sharing must prohibit the accredited user from taking any action that may have the result that the data ceases to be de‑identified. 16B Purpose‑specific privacy protections If data sharing purpose is delivery of government services (1) If the data sharing purpose of the project is delivery of government services, the data must not include personal information about an individual unless: (a) one or more of the following apply: (i) the service being delivered is a service mentioned in paragraph 15(1A)(a) or (b) and is delivered to the individual; (ii) the individual consents to the sharing of their personal information; (iii) the sharing would be a disclosure authorised under Part VIA of the Privacy Act 1988 (dealing with personal information in emergencies and disasters); and (b) the service being delivered is identified in the data sharing agreement for the project; and (c) only the minimum amount of personal information necessary to properly deliver the service is shared. (2) If data that includes personal information is to be shared with an accredited user in circumstances in which the shared data exits the data sharing scheme under subsection 20E(4), the data sharing agreement must specify this. If data sharing purpose is informing government policy and programs or research and development (3) If the data sharing purpose of the project is informing government policy and programs, or research and development, the data must not include personal information about an individual unless: (a) both of the following apply: (i) the individual consents to the sharing of their personal information; (ii) only the minimum amount of personal information necessary for the project to proceed is shared; or (b) all of the following apply: (i) the project cannot proceed without the personal information; (ii) the public interest served by the project justifies the sharing of personal information about individuals without their consent; (iii) only the minimum amount of personal information necessary for the project to proceed is shared; (iv) a permitted circumstance for the project's data sharing purpose exists (see subsections (4) and (5)). (4) The permitted circumstances for the data sharing purpose of informing government policy and programs are the following: (a) it is unreasonable or impracticable to seek the individual's consent; (b) the data is to be collected and used in the course of medical research and in accordance with guidelines under subsection 95(1) of the Privacy Act 1988; (c) the sharing is with an ADSP as an intermediary, to enable the ADSP to prepare ADSP‑enhanced data that does not involve personal information about the individual; (d) the sharing is ADSP‑controlled access (see subsection (6)); (e) the accredited user is a Commonwealth body (other than a Commonwealth body excluded from this paragraph by the rules) and the final output of the project includes only de‑identified information; (f) the sharing is a disclosure authorised under Part VIA of the Privacy Act 1988 (dealing with personal information in emergencies and disasters). Note: It is not unreasonable or impracticable to seek an individual's consent merely because the consent of a very large number of individuals needs to be sought. The Commissioner is also required to make a data code dealing with this matter. (5) The permitted circumstances for the data sharing purpose of research and development are the circumstances mentioned in paragraphs (4)(a) to (d). (6) Sharing is ADSP‑controlled access if: (a) an ADSP is sharing the data on behalf of the data custodian with an accredited user; and (b) the data is shared by means of the ADSP providing access to the data: (i) by use of systems controlled by the ADSP; and (ii) to particular identified designated individuals for the entity, each of whom has appropriate experience, qualifications or training; and (c) the ADSP has implemented controls to prevent or minimise the risk of the data being used to identify individuals. (7) If the data custodian of the data being shared concludes that, in relation to the sharing of personal information under the agreement for the purpose of informing government policy and programs, or research and development, the circumstance mentioned in paragraph (4)(a) exists (unreasonable or impracticable to seek individual's consent), the agreement must include: (a) a statement that personal information is being shared without consent of individuals because it is unreasonable or impracticable to seek their consent; and (b) an explanation of the data custodian's reasons for so concluding. (8) If personal information about an individual is to be shared without the consent of the individual for the data sharing purpose of informing government policy and programs, or research and development, the data sharing agreement must include a statement setting out why sharing the personal information is consistent with this section. 16C Project involving use of de‑identification or secure access data services (1) The requirement in subsection (2) applies if: (a) the data sharing purpose of the project is informing government policy and programs or research and development; and (b) the project involves performing a de‑identification data service (see subsection (3)) or a secure access data service (see subsection (4)). (2) The data sharing agreement that covers the project must require the service to be performed by one of the following: (a) the data custodian of the data, if the data custodian is not an ADSP but is satisfied that it has the appropriate skills and experience to perform the service; (b) the data custodian of the data, if the data custodian is an ADSP able to perform such a service consistently with its conditions of accreditation; (c) an ADSP able to perform such a service consistently with its conditions of accreditation. (3) A de‑identification data service is a service to treat data that includes personal information so that the data is de‑identified, using techniques that restrict the data being used in a way that would have the result that the data ceases to be de‑identified. (4) A secure access data service is: (a) the service of providing ADSP‑controlled access; or (b) any other service that enables an entity to access data under the control of another entity and that includes controls to prevent or minimise the risk of the data being misused. 16D Project involving complex data integration services (1) The requirement in subsection (2) applies if: (a) the data sharing purpose of the project is informing government policy and programs or research and development; and (b) the project involves performing a complex data integration service (see subsection (3)); and (c) a decision that subsection (4) applies to the service has not been made. (2) The data sharing agreement that covers the project must require the service to be performed by one of the following: (a) the data custodian of the data, if the data custodian is an ADSP able to perform such a service consistently with its conditions of accreditation; (b) an ADSP able to perform such a service consistently with its conditions of accreditation. (3) A service to integrate data is a complex data integration service if: (a) 2 or more entities control the data being integrated; and (b) the data is at the unit or micro level; and (c) any of the following subparagraphs applies to any of the data to be integrated, or to the integrated data: (i) the data includes personal information; (ii) the data includes commercially sensitive information (including trade secrets) about the business, commercial, or financial affairs of an organisation; (iii) the data includes information that is not publicly available about an industry or sector that forms part of the Australian economy; (iv) the data includes information about one or more persons or things the data custodian of the data considers to be vulnerable or sensitive; (v) the data is to be used for more than one project; (vi) the data meets conditions prescribed by the rules; and (d) the data to be integrated, or the integrated data, has any of the characteristics prescribed by the rules (if any). (4) An individual covered by subsection (5) may decide that this subsection applies to the integration, if the individual is satisfied that, having regard to the following matters in relation to the data custodian's data and the other data proposed to be integrated, the risk that the integration could cause substantial harm is low: (a) the size of the data sets; (b) whether the data relates to a significant proportion of the population of people or things to which the data relates; (c) the detail of the individual records included in the data; (d) how current the data is and whether it will be updated; (e) the quality of the metadata and documentation for the data sets; (f) whether entities that collected data to be integrated, or on whose behalf data to be integrated was collected, are aware of the proposed use of the data; (g) if the data includes personal information—whether a person qualified to assess the ethics of the proposed use of the data has conducted such an assessment; (h) whether the data custodian of the integrated data will control the technical environment in which the integrated data will be accessed; (i) any other matters prescribed by the rules. (5) An individual is covered by this subsection if the individual is: (a) an authorised officer of a data custodian of data that is to be integrated; or (b) an individual authorised under subsection 137(4) for the data custodian of data that is to be integrated. (6) An individual who makes a decision that subsection (4) applies must make a written record of the decision and the reasons for the decision. 16E Privacy coverage condition (1) For the purposes of sections 13, 13A and 13B, the privacy coverage condition is met, in relation to an entity, if: (a) the entity is an APP entity; or (b) the Privacy Act 1988 applies to the entity, in relation to its collection and use of data as part of the project, as if the entity were an organisation within the meaning of that Act; or (c) the entity is subject to an APP‑equivalence term of the data sharing agreement in relation to its collection and use of data as part of the project; or (d) a law of a State or Territory that provides for all of the following applies in relation to the entity's collection and use of data as part of the project: (i) protection of personal information comparable to that provided by the Australian Privacy Principles; (ii) monitoring of compliance with the law; (iii) a means for an individual to seek recourse if the individual's personal information is dealt with in a way contrary to the law. (2) An APP‑equivalence term is a term of a data sharing agreement prohibiting an entity from collecting or using personal information under the agreement in any way that would, if the entity were an organisation within the meaning of the Privacy Act 1988, breach an Australian Privacy Principle. (3) An act or practice engaged in by an entity that is an organisation referred to in paragraphs 7B(2)(a) and (b) of the Privacy Act 1988 is not, despite subsection 7B(2) of that Act, exempt for the purposes of paragraph 7(1)(ee) of that Act if the act or practice is collecting or using personal information as part of a project. Note: Paragraphs 7B(2)(a) and (b) of the Privacy Act 1988 refer to an organisation that would be a small business operator if it were not a contracted service provider for a Commonwealth contract (within the meaning of the Privacy Act 1988). (4) Except as provided by subsection (3) and Part 3.3, nothing in this Act affects the operation of the Privacy Act 1988 in relation to a data scheme entity that is an APP entity. Note: Part 3.3 (data breach responsibilities) deals with the relationship between this Act and the requirements of Part IIIC of the Privacy Act 19