05 April 2022
4 min read
#Government, #Australian Government, #Corporate & Commercial Law
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The Data Availability and Transparency Act 2022 (DAT Act) establishes a legislative scheme for sharing Australian Government data. A new mechanism for sharing public sector data was recommended by the Productivity Commissioner in 2017, and the Government has been consulting on such a scheme since mid-2018.
The scheme set out in the DAT Act was introduced to the Australian Parliament on 9 December 2020 to allow greater flexibility in sharing public sector data.
Relevantly, the Bill’s Explanatory Memorandum (Explanatory Memorandum) provides that:
“Reforms are necessary to realise the benefits of greater data availability and use identified by a Productivity Commission inquiry, supporting economic and research opportunities and the Government’s vision for streamlined and efficient service delivery.”[1]
On 30 March 2022, the Bill passed both houses of Parliament and received Royal Assent on 31 March 2022. Under amendments passed by Parliament, the scheme allows the sharing of public sector data with Australian entities, specifically Commonwealth, State and Territory bodies and Australian universities. The DAT Act commenced on 1 April 2022.
The DAT Act provides a new method by which public sector data is shared. Under the DAT Act, the three purposes for sharing public sector data are:
Data custodians are Commonwealth bodies that control public sector data or the output of certain data projects which are not excluded entities. Once a data custodian is satisfied that a proposed project is for a permitted purpose, the data sharing principles must be applied to assess and control risks of sharing.
The five data sharing principles act as one of the key layers of safeguards. The principles include:
These principles guide how risks should be assessed and managed.
The principles are a framework for best practice risk management, enabling parties to adapt controls to suit the needs and context of each sharing arrangement.
Relevantly, the Explanatory Memorandum reminds data custodians:
“The Bill does not compel sharing. Data custodians are responsible for assessing each sharing request, and deciding whether to share their data if satisfied the risks can be managed.”[2]
On this basis, it will be key for data custodians to assess each project on a case-by-case basis, paying attention to each project’s circumstances.
If a data custodian decides that a permitted purpose is not met or the project does not meet the requirements of the data principles, section 25 of the DAT Act requires the entity to provide reasons as to why the data request is rejected. Indeed, the DAT Act contains penalty provisions to deter non-compliance with its requirements and to protect data shared or created through the scheme.
Applying the principles and considering whether a project meets a permitted purpose on a case-by-case basis will not only ensure compliance with the DAT Act, but also assist in establishing good administrative practice. This will aid in increasing public confidence in the way the Government handles public sector data.
The DAT Act presents an interesting dynamic regarding its interaction with existing legislation regulating public sector information, such as the Freedom of Information Act 1982 (Cth), Privacy Act 1998 (Cth) (Privacy Act) and secrecy provisions. The DAT Act includes specific privacy protections at Part 2.4, regulating the sharing of personal information. Notably, the DAT Act provides an authorisation under section 23 that overrides any law of the Commonwealth, a State or Territory, including those contained within a secrecy provision.
The DAT Act provides for the publication of data codes, rules and regulations which will provide further guidance on the operation of the legislation. A review of the scheme is scheduled to take place in three years and a sunset clause has been included, which operates after five years.
The DAT Act presents a significant milestone in the legislation applicable to sharing public sector data. The recent pandemic and recurring emergency situations have demonstrated the value of data to inform public policy that best meets the needs of the Australian community. At the same time, there is increased awareness regarding the protection of personal information. Accordingly, it is essential that all entities involved in the scheme pay close attention to the requirements of the legislation.
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Authors: Elizabeth Carroll & Lachlan Speak
[1] Explanatory Memorandum, Data Availability and Transparency Bill 2020, 5.
[2] Explanatory Memorandum, Data Availability and Transparency Bill 2020, 5.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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