16 August 2022
17 min read
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Queensland’s ongoing review of the Information Privacy Act 2009 (IPA) has recently achieved a milestone, with public submissions on the Government’s June Consultation Paper having closed on 22 July 2022.
As we inch closer towards a new privacy regime, entities can begin to prepare by familiarising themselves with the changes proposed in the Consultation Paper.
We set out a summary of the more significant proposals to change the IPA below.
Queensland’s information privacy framework is articulated in the IPA. The IPA applies privacy controls to the handling of personal information by Queensland Government agencies and health agencies.
Whilst outside the scope of Queensland’s review, the Commonwealth Privacy Act 1988 (Commonwealth Act) also regulates the Queensland business landscape by applying privacy controls to Commonwealth agencies and organisations, businesses with an annual turnover of more than $3 million, private sector health service providers, credit reporting bodies and businesses that sell or purchase personal information.
Queensland’s privacy regime operates alongside its right to information framework, which is also subject to various proposals under the current review.
The IPA’s primary function is to regulate how ‘personal information’ is collected, used, stored and disclosed by Queensland agencies. The current definition of personal information in set out in section 12 of the IPA:
“… information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
The definition has fallen out of step with the equivalent definition included in the Commonwealth Act, against which the drafting was initially modelled. The Commonwealth definition of personal information has been updated to refer to information about “an identified individual, or an individual who is reasonably identifiable”. The discrepancy between the two definitions means that Queenslanders’ personal information is subject to different tests depending on whether the agency handling that information is captured by the State or Commonwealth legislation. The Consultation Paper has therefore called for views on whether the ‘personal information’ definition should be aligned with the current definition of ‘personal information’ under the Commonwealth Privacy Act 1988.
However, the Commonwealth is presently considering in its own review whether ‘personal information’ should include technical data and online identifiers and may soon update its definition of ‘personal information’ along such lines.
There is opportunity in Queensland’s review of the IPA to consider whether technical data and online identifiers that are about an individual (IP addresses, device identifiers or location data, for example) should also be included in the ‘personal information’ definition, whilst having regard to Commonwealth’s updated privacy legislation, if and when that becomes available.
The IPA has two sets of privacy principles – one that applies to health agencies in Queensland (the National Privacy Principles, or NPPs), and another that applies to all other Queensland agencies (the Information Privacy Principles, or IPPs). The Commonwealth Act includes a third set of principles (the Australian Privacy Principles, or APPs). Whilst similar, the separate sets of principles are distinct from each other and apply to different entities.
As identified in the Consultation Paper, a potential issue with the current approach is that compliance becomes a costly exercise, particularly for entities subject to more than one set of principles. It also may reduce understanding in the Queensland community of individual privacy rights.
The Queensland Government is proposing that the NPPs and IPPs are removed in favour of a single set of ‘Queensland Privacy Principles’ (QPP) that are, to the extent reasonable in light of the different jurisdictional contexts, consistent with the APPs in the Commonwealth Act.
Mandatory data breach reporting refers to the requirement to notify individuals (and/or a regulator) who may be affected by a data breach. Whilst a mandatory data breach reporting scheme has been implemented at the Commonwealth level, there is no compulsion to report data breaches under Queensland’s IPA.
In the current review, the Government has sought feedback on a proposal to include a mandatory data breach reporting scheme in the IPA which is triggered by certain unauthorised disclosure of, unauthorised access to, or loss of personal information. The scheme would require the agency responsible for the disclosure, access or loss to notify both the affected individual and the Office of the Information Commissioner. This addition to the IPA would align it with the Commonwealth Act.
The Queensland Government is considering whether there is a need for a new criminal offence for the misuse of confidential information by public officers. Whilst offences in the Queensland Criminal Code such as section 408 (computer hacking and misuse), section 85 (disclosure of official secrets), section 87 (official corruption), section 88 (extortion by public officers) and section 92A (misconduct in relation to public office) criminalise conduct that may involve the misuse of confidential information by a public officer, no existing offences overlap precisely with the conduct sought to be criminalised by the proposed new offence.
Misuse of information provided by Queenslanders to a public office involves a serious breach of trust and has the potential to cause irreparable harm to the person to which the information relates. As implied by the Queensland Government in the Consultation Paper, a new offence has the potential to provide a clearer message to the public about acceptable standards of conduct. An appropriately drafted offence could assist prosecutors by providing a more direct and effective avenue for privacy law enforcement.
The Queensland Government will consider the submissions in the context of its policies. As the Commonwealth is also reviewing its privacy legislation, and better alignment with the Commonwealth legislation is one intention of the review, we expect that a period of consultation will be required between government levels to ensure the workability of both frameworks in the Queensland context.
In the meantime, we also anticipate that the responses to the Consultation Paper will soon become available on the Department of Justice and Attorney General’s website.
Author: Andrew Hynd
Building a bulletproof statement of reasons (14 September 2022)
One of the fundamental aspects of good decision-making is being able to demonstrate fairness, transparency and accountability. An essential method of demonstrating those factors are a decision-maker’s statements of reasons. In this interactive session we will cover recent case-law and statutory developments together with practical tips for decision-makers when preparing a statements of reasons. Register here.
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Transcripts and recordings
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New electronic document management spreadsheet
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2022 Australian Young Lawyer Awards
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AAT Bulletin Issue No.15/2022 25 July 2022
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. Read more here.
NTL Constructions Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 239
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to strike out application to review on basis applicant is deregistered – effect of deregistration – whether application to review should be dismissed.
Commissioner of State Revenue v Telgrove Pty Ltd [2022] QCA 132
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent is one of six entities that had been grouped for payroll tax purposes by the applicant – where the applicant refused to make an exclusion order pursuant to s 74 of the Payroll Tax Act 1971 (Qld) (the Act) and issued default tax assessment notices – where the respondent was successful in its application to QCAT (the Tribunal) for review of the decision.
ST v Metro South Hospital and Health Service & Ors [2022] QCAT 272
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – gender identity discrimination in the area of goods and services under s.7(m), 10, 11 and 46 of the AD Act. GENDER IDENTITY -DISABILITY OR IMPAIRMENT – mental health-OTHER MATTERS – where applicant resides in public housing – where warrant of possession issued – where considerable delay in bringing allegations – where alleged discrimination made on grounds of impairment.
Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22
PLANNING AND ENVIRONMENT – APPEAL – CONDITIONS – DEVELOPMENT APPLICATION – where the Council approved development of land for a service station – where a condition required the operating hours of the service station to be limited to 6 am to 10 pm, Monday to Sunday – whether the conditions imposed by the Council are lawful – whether conditions should be imposed in the exercise of discretion.
Bode v State of Queensland (Queensland Health) [2022] QIRC 260
PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where appellant appeals a conversion decision and fair treatment decision – whether appellant has standing to lodge a public service appeal – appeal misconceived – no appealable decisions pursuant to s 194 of the Public Service Act 2008 (Qld).
Mizner v State of Queensland (Queensland Corrective Services and Smith) [2022] QCAT 245
INTERLOCUTORY INJUNCTION – PRESERVING THE STATUS QUO PENDING DETERMINATION OF RIGHTS – where applicant is a prisoner – where applicant alleges indirect discrimination on the basis of impairment – proposal to place applicant in a dual occupancy cell – where applicant established a prima facie case – where balance of convenience favours maintaining the status quo.
HUMAN RIGHTS – DISCRIMINATION – INDIRECT DISCRIMINATION – where applicant alleges indirect discrimination – where applicant brings a “piggy-back” claim asserting contravention of the Human Rights Act 2019 (Qld).
Bills introduced by Government
Appropriation (Parliament) Bill 2022
Appropriation Bill 2022
Building Units and Group Titles and Other Legislation Amendment Bill 2022
Industrial Relations and Other Legislation Amendment Bill 2022
Revenue Legislation Amendment Bill 2022
Bills passed without amendment
Revenue Legislation Amendment Bill 2022
Bills amended during passage
Personal Injuries Proceedings and Other Legislation Amendment Bill 2022
Acts assented to
Personal Injuries Proceedings and Other Legislation Amendment Act 2022 No. 13 - Assent 30 June 2022
Revenue Legislation Amendment Act 2022 No. 14 - Assent 30 June 2022
Subordinate legislation notified
Residential Services (Accreditation) (Exclusion of Retirement Villages) Amendment Regulation 2022
Residential Tenancies and Rooming Accommodation Amendment Regulation 2022
Safety in Recreational Water Activities (Code of Practice) Notice 2022
Work Health and Safety (Codes of Practice) Notice 2022
Associations Incorporation and Other Legislation Amendment Regulation 2022
Education and Care Services National Law (Queensland) Regulation 2022
Subordinate legislation tabled
Adoption (Fee Unit Conversion) Amendment Regulation 2022
Building Amendment Regulation 2022
Education and Other Legislation (Fee Unit Conversion) Amendment Regulation 2022
Fisheries (Coral) Amendment Declaration 2022
Fisheries (Hammerhead Sharks) Amendment Declaration 2022
Forestry (Use of Side-by-side Vehicles) Amendment Regulation 2022
Further Education and Training (Fee Unit Conversion) Amendment Regulation 2022
Housing Legislation (Fee Unit Conversion) Amendment Regulation 2022
Major Events (Motor Racing Events) (Townsville 500) Amendment Regulation 2022
Mining Legislation (Continuing Professional Development) Amendment Regulation 2022
Professional Standards (Law Institute of Victoria Limited Professional Standards Scheme) Notice 2022
Professional Standards (South Australian Bar Association Professional Standards Scheme) Notice 2022
Public Health (Further Extension of Declared Public Health Emergency—COVID-19) Regulation (No. 2) 2022
Racing Integrity (Fee Unit Conversion) Amendment Regulation 2022
Resources Safety and Health Legislation (Fee Unit Conversion) Amendment Regulation 2022
Retirement Villages (Exempt Schemes) Amendment Regulation 2022
Transport Legislation (Fees and Other Matters) Amendment Regulation 2022
Water (Fee Unit Conversion) Amendment Regulation 2022
Weapons (Fee Unit Conversion) Amendment Regulation 2022
Subordinate legislation repealed
Land (COVID-19 Emergency Response—Waiver and Deferral of Rents and Instalments) Regulation 2020
Professional Standards (Law Institute of Victoria Limited Scheme) Notice 2016
Professional Standards (Queensland Law Society Professional Standards Scheme) Notice 2016
Professional Standards (South Australian Bar Association Inc Scheme) Notice 2017
Professional Standards (The Law Society of South Australia Professional Standards Scheme) Notice 2017
Workers’ Compensation and Rehabilitation (QOTE) Notice 2021
Subordinate legislation expired
Disability Services (Transitional) Regulation 2019
Land (COVID-19 Emergency Response—Waiver and Deferral of Rents and Instalments) Regulation 2020
Maintenance Regulations 1967
Professional Standards (Queensland Law Society Professional Standards Scheme) Notice 2016
Disaster Management (Further Extension of Disaster Situation—COVID-19) Regulation 2022
Public Health (Further Extension of Declared Public Health Emergency—COVID-19) Regulation 2022
Disclaimer
The information in this publication 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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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