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Queensland Government Bulletin

16 August 2022

#Government, #Data & Privacy

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Queensland Government Bulletin

Proposed changes to Queensland’s information privacy laws

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

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 significant proposed changes to the IPA

The definition of ‘personal information’

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 “QPP” – a single set of privacy principles for Queensland

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.

The proposal for mandatory data breach reporting

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 introduction of a new criminal offence

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.

What happens next?

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

Upcoming webinars

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.

In the media

Tony Fitzgerald hands down review into Queensland's Crime and Corruption Commission
A Commission of Inquiry relating to the Crime and Corruption Commission (CCC) has recommended that the Queensland's corruption watchdog must to consult with the state's Director of Public Prosecutions before laying charges to avoid "unwarranted impact" of its investigations and rebuild public confidence. The report also recommends the CCC reduce its reliance on police officers as staff (9 August 2022).  More…

Audit calls for more ‘user-friendly’ grants
An audit of five Departments’ management of the grants they allocate has also assessed the strengths and weaknesses of the internal controls in use. According to the audit, it found that clearer information was needed, partly for transparency reasons, but also because people could understand what funding was going to their local communities (26 July 2022).  More…

Specialist domestic and family violence court to operate in Brisbane
A specialist domestic and family violence court will be established in Brisbane to help vulnerable Queenslanders navigate the justice system. The Attorney-General said the design and operation of the Brisbane Specialist Domestic and Family Violence Court would be informed by the operations of existing specialist courts, particularly Queensland’s first permanent specialist DFV court at Southport (16 July 2022).  More…

REIQ: Latest law reforms could lead to Qld investor exodus
New Queensland rental legislative reforms could have a damaging impact on the industry, according to the Real Estate Institute of Queensland (REIQ). The reforms, which come into effect from 1 October 2022, include the removal of the right for property owners to end a periodic tenancy simply by providing notice, a move that could result in the extinction of these tenancy types (8 July 2022).  More…

First Nations voices heard
The Queensland Government has announced the appointment of the state’s eight-member First Nations Consultative Committee. The Committee will help design a Queensland Indigenous Voice model that best meets the needs and priorities of First Nations peoples and reflects the diversity of Aboriginal and Torres Strait Islander peoples and communities in Queensland (7 July 2022).  More…

New Solicitor-General for Queensland
Highly experienced barrister Gim Del Villar QC has been announced as Queensland’s new Solicitor-General. Mr Del Villar takes over from Sandy Thompson QC, who has decided to retire from the role having completed a three-year term of distinguished service (7 July 2022).  More…

DPC taskforce to adopt QPS review plans
The Department of Premier and Cabinet is to set up a new taskforce to implement the recommendations of the Coaldrake review into the Queensland public sector. Endorsed by Cabinet, Peter Coaldrake’s wide-ranging report includes 14 key recommendations Premier Annastacia Palaszczuk declared “will set a benchmark for the rest of Australia to follow” (6 July 2022).  More…

Queensland's Women's Safety and Justice Taskforce recommends strengthening consent laws
Women's Safety and Justice Taskforce Chair Margaret McMurdo has handed down the second Hear Her Voice report, making 188 recommendations to the Queensland Government including strengthening sexual consent laws and an educational campaign to dispel rape myths for female victim-survivors of sexual assault (1 July 2022).  More…

Publications

Without Fear or Favour: the ALRC’s new report on judicial impartiality and the law on bias
The Australian Law Reform Commission has releases a report, Without Fear or Favour: Judicial Impartiality and the Law on Bias, outlining 14 recommendations which, if adopted, will buttress impartial decision-making and help maintain the legitimacy of the federal judiciary in a changing world. Read the Report here.

Delivering social housing services
The Queensland Audit Office has tabled the Delivering social housing services Report 1: 2022-23 in Parliament. As many social and economic factors, including inflation and rising interest rates, contribute to growing housing pressures, the report examines whether social housing is effectively managed to meet the housing needs of vulnerable Queenslanders. Read the Report here.

The next industrial revolution: Transforming Australia to flourish in a net-zero world
According to the latest report from the Grattan Institute, Australia needs a 21st Century industry policy so we can become an industrial success story as the world moves to net-zero carbon emissions. The report sets out the steps that the federal government and industry can take to forge a new strategic partnership to create jobs and boost productivity. Read the report here.

Unemployment rate falls to 3.5 per cent
The unemployment rate has fallen to 3.5 per cent in June 2022, according to data released by the Australian Bureau of Statistics. According to the data, employment increased by 88,000 people and unemployment fell by 54,000, with the unemployment rate down l by 0.4 percentage points, to 3.5 per cent – the lowest in almost 50 years. Read more here.

CCIQ June quarter Pulse Survey the chance for businesses to highlight future growth needs
Queensland businesses have the chance to share what they need to scale and grow in the future, including where they see the most significant business input costs and how that is impacting their bottom line, via the Chamber of Commerce and Industry Queensland’s June Quarter Pulse Survey, out now. You can also read the March quarter Pulse Report here.

Practice

Transcripts and recordings
The Department of Justice and Attorney-General is moving to a new way of delivering recording and transcription services across Queensland Courts and Tribunals. Queensland Courts and Tribunals has begun transitioning to QTranscripts, the new recording and transcription service delivery model, under a staged rollout. Details here.

New electronic document management spreadsheet
To assist litigants and practitioners in embracing technology in the conduct of litigation, a revised version of the document management spreadsheet is now available on the Queensland Courts website. The spreadsheet facilitates electronic management of documents from commencement of a proceeding, including the preparation of an electronic ‘List of Documents’ for the purpose of disclosure, eBriefs to counsel, briefs for mediation and eTrial bundles. Details here.

2022 Australian Young Lawyer Awards
The 2022 Australian Young Lawyer Awards are now open. The awards aim to encourage and foster young lawyer organisations to establish programs for the benefit and assistance of the profession and the community, and to recognise and reward the achievement and contributions of individual lawyers. Nominate a young lawyer or young lawyer organisation before 12 August here.

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.

Cases

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)1011 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).

Legislation

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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