Private sector privacy bill scrutinised by parliamentary committee

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Private sector privacy bill scrutinised by parliamentary committee

On 26 June 2000, the House of Representatives' Standing Committee on Legal and Constitutional Affairs tabled in Parliament its Advisory Report on the Privacy Amendment (Private Sector) Bill 2000.

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On 26 June 2000, the House of Representatives' Standing Committee on Legal and Constitutional Affairs tabled in Parliament its Advisory Report on the Privacy Amendment (Private Sector) Bill 2000. Providing for the creation of a single national scheme to deal with the collection, use and transfer of personal information by private organisations, the Bill had been introduced into the House of Representatives on 12 April 2000, whereupon the federal Attorney-General referred the Bill to the Committee for inquiry and report.

Following on from a considerable volume of written submissions and a subsequent hearing conducted throughout late May and early June, the Committee made 23 recommendations. Two issues were of particular relevance to employers. They were the proposed exemption of small businesses and the availability of some employee records.

The dichotomy between protecting privacy and small businesses 

While protecting privacy is an important goal, the Government has recognised that it ought to be balanced against the repercussion of imposing unnecessary costs on small business. In its present form, the Bill defines 'small business' as a business with an annual turnover of $3 million or less. The Committee noted that there were few organisations that expressed unqualified support for the small business exemption. To this end the Committee recommended that a mechanism be included in the Bill to allow otherwise exempt small businesses to opt-in to the coverage of the Bill and be subject to the jurisdiction of the Privacy Commissioner or an approved code adjudicator.

Employee Records exemption

The Committee also considered the feasibility of limiting the small business exemption, to ensure that the exemption does not extend to acts or practices of a small business that relate to employee records. The Bill initially defined employee records to incorporate all personal information relating to the employment of the employee. According to the Government, whilst personal information in the form of employee records is deserving of privacy protection, it is more properly a matter for workplace or industrial relations legislation. The Committee was not satisfied that existing workplace relations legislation provided enough protection for the privacy of private sector employee records, and as such expressed concerns about the inclusion of the employee records exemption in the Bill.

The Committee noted that there exist competing considerations. On the one hand there is information that an employer should be able to disclose to future employers. This would consist of more performance-related information such as confidential references. On the other hand the Committee acknowledged that information such as health, family or financial information should be distinguished from information relating to disciplinary matters or career progression. Information relating to an employee's health, family and financial position is according to the Committee inappropriate for inclusion in the exemption and the Committee saw no reason why such information should be provided to anyone else without the consent of the employee.

Consequently, the Committee recommended that the definition of employee record be amended to refer to all personal information relating to the employment of the employee other than an exempt employee record. It was also recommended that a definition for exempt employee record be inserted into the proposed legislation. The recommendation proposed that exempt employee record refer to the information regarding the engagement, training, disciplining, performance conduct, resignation or termination of the employee.

Therefore, small businesses with a turnover of $3 million or less are exempt from the operation of the proposed legislation. This exemption does not extend to employee records except for those records that pertain to the engagement, training, disciplining, performance conduct, resignation or termination of an employee. In response to the tabling of the Report, the Attorney-General, Mr. Daryl Williams, advised by way of a press release, that in accordance with the usual practice regarding parliamentary committee reports, the Government would consider the recommendations and respond when the Bill comes up for debate.

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