29 November 2022
25 min read
#Government, #Data & Privacy, #Workplace Relations & Safety
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In this final bulletin for 2022, we provide a timely reminder to government agencies of the considerations that should be given to the collection, storage and retention of personal information following the Optus and Medibank data breaches. We also discuss the impact of the recent changes to the Industrial Relations Act 2016 (Qld) on government agencies, and wrap-up our Queensland Government lawyers series for the year. Click below to jump to the following sections:
Government agencies collect and hold significant amounts of personal information, including home addresses; phone numbers; driver licence, Medicare and passport numbers; health records; photographs; criminal records; and credit card details.
While it is accepted that agencies may collect and hold this information, the public expects that the information they provide to government agencies will be protected from misuse by third parties.
Following the recent Optus and Medibank data breaches, information privacy and protection has become a fundamental issue for Queenslanders looking to maintain their personal information from corruption, compromise or loss.
As a result, government agencies should consider their personal information holdings and assess how they continue to collect, retain and dispose of personal information.
Queensland’s data protection and retention regime is set out across two Acts. First, government agencies in Queensland must comply with the Information Privacy Principles (IPPs) set out in the Information Privacy Act 2009 (Qld) (IP Act). The IPPs provide for the fair collection and handling (in the public sector environment) of personal information by placing strict obligations on an agency when it collects, stores, provides access to, amends, uses and discloses personal information.
Additionally, government agencies are required to adhere to the Public Records Act 2002 (Qld) (PR Act) which governs how the state’s public records are made, managed, kept and, if appropriate, preserved.
Under the IPPs, a government agency may request personal information from an individual, provided the following criteria are met:
Once collected, personal information may become a public record per the PR Act, where it is dealt with by an agency in the in the course of their business or conduct of their affairs.
Thereby, collecting only the personal information that a government agency is entitled to under law will mitigate the risk and potential impact of a data breach.
The question of what information should not be collected is not only relevant to whether an entity is meeting its obligations under the IP Act and the PR Act, but also represents important risk mitigation in the event of a data breach. The release of records that an agency had no entitlement to collect or store is likely to be far more problematic and receive higher levels of criticism.
Accordingly, entities need to consider whether there is an ongoing need or legal basis for their collection. There should be clear and justifiable reasons for collecting personal information, and these reasons may change (and reduce) over time.
If there is no law requiring or authorising the collection of personal information, government agencies should also review whether it is reasonably necessary for their functions or activities to continue collecting personal information.
The ‘reasonably necessary’ test is an objective test – that is, would a reasonable person who is properly informed agree that the collection is necessary?
This will require consideration of several factors such as whether there are any applicable workplace laws and contractual obligations that make the collection of personal information reasonably necessary for an agency’s functions and activities.
If there is no longer a requirement or a reason to collect personal information, then steps should be taken to ensure this information is no longer collected.
As with the consideration of whether entities should be collecting information in the first place, compliance with the IP Act and PR Act also require consideration of what information should be deleted from time to time. Similarly, this consideration may be a risk mitigation factor as records which ought to have been deleted, but were not, fall into a category open to greater criticism than others. For example, some former customers of Optus whose data was leaked had not been customers for, in some cases, decades.
Disposal has a specific definition under the PR Act and includes destroying, damaging, abandoning, transferring, donating, giving away or selling a record in whole or in part. Disposal of a public record without proper authorisation is a criminal offence.
Of course, disposal must be balanced with the obligation for public records to be retained for the appropriate retention periods listed in the current General Retention and Disposal Schedule.
It is recommended that agencies follow the State Archivist’s Records governance policy and plan for how and when records will be disposed of, using a risk-based approach. Records must be disposed of in a planned and authorised way by:
It is important to identify the various ways in which personal information has been collected and stored, as this may impact the destruction and de-identification process. For example, if the information is stored in a hard copy, secure disposal might include methods such as secure shredding before recycling or throwing away. In contrast, if the information is stored electronically, such as in cloud-based storage, servers, USBs or with a third-party provider, you should ensure that the digital records are permanently destroyed, including in any back-up system or offsite storage.
Regular, authorised disposal ensures that only important, useful and accurate records are kept. This is particularly relevant as IPP 8 under the IP Act in particular requires government agencies to ensure personal information they have collected is accurate, up to date, complete and not misleading.
While agencies are not required to continually check the personal information they hold, they must take reasonable steps when the information is collected to ensure that it is correct. And, where there is reason to believe that the source information may not be accurate or may have become inaccurate over time, amendment or disposal may be required.
For government agencies, the collection and storage of information is a necessary function. However, it is important that when doing so they comply with the obligations under the IP and PR Acts to better mitigate the risks of potential data breaches. In light of the Optus and Medibank data breaches, we recommend agencies reflect on the following questions:
Our government team can assist you in understanding your collection and retention of personal information obligations and can provide training for your team to ensure they are able to comply with the above and give appropriate consideration to these matters.
Authors: Joanne Jary, Alexandra Hollings & Kayla Plunkett
The Industrial Relations and Other Legislation Amendment Act 2022 (Qld) (Amendment Act) gives effect to the Queensland Government’s response to the Respect@Work Report by the Australian Human Rights Commission.
The amendments see the Industrial Relations Act 2016 (IR Act) adopt the established definitions of sexual harassment in the Anti-Discrimination Act 1991 (Qld) and Sex Discrimination Act 1984 (Cth). However, the concept of sex- or gender-based harassment is new to the Queensland statute book.
Sex- or gender-based harassment is defined as unwelcome conduct of a demeaning nature on the basis of the harassed person’s sex or gender. The conduct must be engaged in with the intention of offending, humiliating or intimidating the harassed person or in circumstances in which a reasonable person would be offended, humiliated or intimidated by the conduct.
The definition of ‘industrial matter’ now includes sexual, sex- or gender-based harassment of an employee in the workplace or during the employee’s employment.
This means complaints about workplace sexual, sex-based or gender-based harassment can be made directly to the Queensland Industrial Relations Commission (Commission) as an industrial dispute. Previously, the Commission could only hear complaints of workplace sexual harassment on referral from the Queensland Human Rights Commission (QHRC), where the complaint had not been resolved through the QHRC’s conciliation process.
The Commission can now also grant injunctive relief to prevent or settle an industrial dispute involving allegations of sexual, sex-based or gender-based harassment.
Unlike other industrial disputes, the Commission can grant leave for legal representation in industrial matters that include allegations of sexual harassment or sex- or gender-based harassment.
Section 320 of the IR Act sets out matters the Commission must consider when determining whether a dismissal was unfair, including whether the employee had been warned about the conduct and given an opportunity to respond to the claim. The section has been amended to allow the Commission to decide a dismissal was not unfair if the employee engaged in sexual, sex- or gender-based harassment.
The definition of ‘misconduct’ in section 120 of the IR Act, for the purpose of summary dismissal, has also been amended to include sexual, sex-based or gender-based harassment.
Amendments to the IR Act now clarify that an unregistered industrial association does not have the right to represent its members in the Commission. The right to represent members’ industrial interests is limited to employee and employer organisations that are registered, or otherwise eligible for and seeking registration, under the IR Act.
Relevant amendments include:
Section 529 of the IR Act has been amended to require agents (other than employees or officers of a registered employee or employer organisation) be granted leave to represent a person or party in the Commission. Agents cannot be granted leave if they receive a fee for providing representation or are acting for an unregistered employee or employer association.
The amendments address concerns about underqualified or unskilled agents appearing in the Commission whilst charging unreasonable fees and some lawyers seeking to avoid regulatory requirements by providing representation under the guise of acting as an agent.
An employee’s entitlement to sick leave of more than two days has been conditional on providing either a doctor’s certificate or other evidence to the employer’s satisfaction. If an employer requires evidence to support carer’s leave of more than two days, the evidence must be in the form of a doctor’s certificate or statutory declaration.
Under these amendments, employees will only be required to provide evidence to support an absence of more than two days on sick leave or carer’s leave if their employer requires it, and the evidence need only be sufficient to satisfy a reasonable person.
The Amendment Act also introduces the following changes:
As a result of these changes, Queensland public sector and local government employers should:
Authors: Jackie Hamilton, Lara Hues & James Phillips
In this session, Construction, Infrastructure & Projects partners Kirsty Smith and Stephen Burton will discuss:
Review of Public Interest Disclosure Act 2010 commences
Following a report by Professor Coaldrake AO into the Queensland public sector, the state government had begun a review of the Public Interest Disclosure Act 2010. The Act facilitates the disclosure of information about wrongdoing in the public sector when it is in the public interest to do so, as well as providing protections for those who make disclosures (23 November 2022). More…
Action for victim-survivors of sexual violence
The Queensland Government has released its response to the Women’s Safety and Justice Taskforce report Hear her voice – Report Two – Women and girls experiences across the criminal justice system. The Taskforce’s report has shone a light on the experiences of victim-survivors of sexual violence and women and girls in the criminal justice system in the state (21 November 2022). More…
Queensland's state-run Driver Reviver sites to close
The Department of Transport and Main Roads says all 23 government-owned Driver Reviver sites will close because they no longer meet health and safety regulations following a safety assessment last year. A further 20 privately run sites will remain open (21 November 2022). More…
Container change scheme to be expanded
The Department of Environment and Science is considering an extension of the state’s Containers for Change program to include glass wine and spirit bottles. Before the Containers for Change program was introduced only 18 per cent of beverage containers were recovered and recycled, now that number has grown threefold to 65 per cent (15 November 2022). More…
Regional Queensland startup founder Julia Spicer named the state’s new Chief Entrepreneur
Successful businesswoman and Order of Australia medal recipient Julia Spicer has been appointed as Queensland’s new Chief Entrepreneur. Outgoing Chief Entrepreneur Wayne Gerard will continue to provide invaluable experience on the Brisbane 2032 Legacy Committee (9 November 2022). More…
New laws to benefit unit owners in Queensland
Reforms to Queensland’s body corporate laws were recently passed in the Queensland Parliament. The passage of the Building Units and Group Titles and Other Legislation Amendment Bill 2022 has resulted in changes to the Building Units and Group Titles Act 1980 and Mixed Use Development Act 1993 to provide more transparent and fairer body corporate arrangements in relevant developments (8 November 2022). More…
State of the Climate 2022 - Australia continues to warm, heavy rainfall becomes more intense
The State of the Climate Report 2022, released by CSIRO and the Bureau of Meteorology, has found changes to weather and climate extremes are happening at an increased pace across Australia. The report shows an increase in extreme heat events, intense heavy rainfall, longer fire seasons and sea level rise. The report draws on the latest climate monitoring, science and projection information to detail Australia’s changing climate now and into the future. Read the report here.
Report Card on $100b goal highlights the good and the bad of 2022
The National Farmers’ Federation has released its 2022 Report Card – tracking progress against the industry’s goal to be Australia’s next $100 billion industry. The latest figures show that despite significant seasonal challenges facing farmers, the industry’s performance is holding surprisingly firm. To view the Report Card, click here.
New report reveals the extent of student spending
Students living in purpose-built student accommodation (PBSA) spend almost as much per month as the average Australian, according to a new report by the Student Accommodation Council. The first-of-its-kind report also reveals more Australian students are living in PBSA than ever before, with domestic students making up almost a quarter of all PBSA residents, almost the same number as international students from China. Read more here.
Implementation and delivery of COI recommendations
On 9 August 2022, in accordance with the Commissions of Inquiry Order (No.1) 2022, the Honourable Gerald Edward (Tony) Fitzgerald AC QC and the Honourable Alan Wilson QC provided their report on the Commission of Inquiry relating to the Crime and Corruption Commission (CCC). The report included 32 recommendations. The CCC is committed to implementing the recommendations and will publicly release quarterly progress reports. Read the first of these reports here.
Managing workforce agility in the Queensland public sector
Recent crisis management experiences such as COVID-19 and natural disasters have reinforced the need for Queensland's public sector to be flexible, and to work in a more unified way. While these conditions challenged business as usual, they also presented an opportunity for the sector to build a diverse and collaborative workforce, capable of agile, flexible, and innovative working practices. Read the Queensland Audit Office’s report here.
Administrative Appeals Tribunal Bulletin
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.
FCFCOA rules amended from Monday
Several amendments to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 commenced on Monday 28 November. The changes include the removal of the requirement to file a Parenting Questionnaire or Financial Questionnaire with every Initiating Application seeking parenting or financial orders respectively. Read more here.
Hyland v Department of Agriculture and Fisheries [2022] QCAT 385
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant filed applications to review a decision out of time – where the applicant filed applications for an extension of time – whether applications for an extension of time should be granted
Councillor Conduct Tribunal v Swalling & Anor [2022] QCATA 153
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks leave to appeal an interlocutory decision of the Tribunal to dismiss an application to join the Independent Assessor as a party to the proceeding – where no formal application was made but the application was inferred from the parties submissions – where the party seeking to be joined is akin to a prosecuting agency – whether the appeal should be allowed
Gorgievski v Gold Coast City Council & Anor [2022] QCAT 365
HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION –GROUNDS OF DISCRIMINATION – SEX DISCRIMINATION – SEXUAL HARASSMENT – HOMOSEXUALITY – VICTIMISATION – where library patron alleged sexual harassment – whether conduct occurred as alleged or at all – whether conduct of a sexual nature – discrimination on ground of sexuality and sex – indirect discrimination – whether conduct was victimisation – where no discrimination was found – where Human Rights were considered
Wood v The King & Anor [2022] QSC 216
HUMAN RIGHTS - HUMAN RIGHTS LEGISLATION - where the applicant is accused on indictment in the District Court - where he had bail - where bail was revoked - where he brought an application in the District Court as to the lawfulness of his detention - where the application was based on his human right identified by s 29(7) of the Human Rights Act 2019 - where a judge of the District Court referred questions of law to the Supreme Court - whether the questions ought to be entertained - whether the application purportedly made pursuant to s 29(7) of the Human Rights Act 2019 was appropriately brought in the District Court
Davidson v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 367
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether there were exceptional circumstances – where the applicant sought review of a decision by the respondent to issue a negative notice for a yellow card – where the applicant was previously a support worker for vulnerable adults – where the applicant was convicted of obtaining financial advantage – where the applicant was convicted of a serious offence – where the applicant had a gambling habit – where the tribunal held there were no exceptional circumstances
Parole Board Queensland v McQueen [2022] QCA 230
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where the respondent, a prisoner, had their parole indefinitely suspended – where the appellant is the parole board – where the parole board appealed an order which set aside its decision – where the questions of statutory construction raised by the appeal are important – where the appellant consents to indemnify the respondent’s costs of appeal
Bills introduced by Government
Housing Legislation Amendment Bill 2022
Police Service Administration and Other Legislation Amendment Bill (No. 2) 2022
Bills introduced by Private Member
Land Tax and Other Legislation (Empty Homes Levy) Amendment Bill 2022
Bills passed without amendment
Appropriation (Parliament) Bill (No. 3) 2022
Appropriation Bill (No. 3) 2022
Building Units and Group Titles and Other Legislation Amendment Bill 2022
Coal Mining Safety and Health and Other Legislation Amendment Bill 2022
Major Sports Facilities Amendment Bill 2022
Public Health and Other Legislation (COVID-19 Management) Amendment Bill 2022
Racing Integrity Amendment Bill 2022
Bills amended during passage
Betting Tax and Other Legislation Amendment Bill 2022
Industrial Relations and Other Legislation Amendment Bill 2022
Acts assented to
Industrial Relations and Other Legislation Amendment Act 2022 No. 27 - Assent 3 November 2022
Major Sports Facilities Amendment Act 2022 No. 26 - Assent 31 October 2022
Proclamations commencing Acts made
Proclamation No. 1—Queensland Veterans' Council Act 2021 (commencing certain provisions)
Acts repealed
Subordinate legislation notified
Forestry (State Forests) and Other Legislation Amendment Regulation (No. 2) 2022
Major Sports Facilities (Townsville Stadium) Amendment Regulation 2022
Queensland Civil and Administrative Tribunal and Other Legislation Amendment Regulation 2022
Valuation of Land (Fee Exemption) Amendment Regulation 2022
Work Health and Safety (Codes of Practice) Amendment Notice 2022
Liquor (Pormpuraaw) and Other Legislation Amendment Regulation 2022
Queensland Veterans’ Council (Postponement) Regulation 2022
Proclamation No. 1—Queensland Veterans' Council Act 2021 (commencing certain provisions)
Fisheries (Effort Caps and Other Matters) Amendment Declaration 2022
Public Trustee (Interest Rate) Amendment Regulation (No. 2) 2022
Subordinate legislation tabled
Fisheries (Effort Caps and Other Matters) Amendment Declaration 2022
Liquor (Pormpuraaw) and Other Legislation Amendment Regulation 2022
Public Trustee (Interest Rate) Amendment Regulation (No. 2) 2022
Queensland Veterans’ Council (Postponement) Regulation 2022
Work Health and Safety (Codes of Practice) Amendment Notice 2022
Proclamation No. 1—Queensland Veterans' Council Act 2021 (commencing certain provisions)
Major Events (T20 World Cup) Regulation 2022
Personal Injuries Proceedings and Other Legislation Amendment Regulation 2022
Planning (Emergency Housing) Amendment Regulation 2022
Water Plan (Pioneer Valley) (Postponement of Expiry) Notice 2022
Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022
Subordinate legislation repealed
Major Events (T20 World Cup) Regulation 2022
Subordinate legislation expired
Major Events (T20 World Cup) Regulation 2022
Disclaimer
The information in this bulletin 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 bulletin is accurate at the date it is received or that it will continue to be accurate in the future.
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