Govt consent-free data sharing put on hold


Denham Sadler
Senior Reporter

The federal government’s controversial plan to introduce a mandatory, consent-free public data sharing scheme has been put on hold due to the ongoing COVID-19 pandemic, three years after it was first proposed.

The Coalition had planned to be working through a consultation period for the exposure draft of its Data Availability and Transparency Bill, which “streamlines and modernises” the sharing of government-held datasets between departments and jurisdictions, and outside institutions.

If passed, the new rules would greatly expand the scope of data shared within government and with other organisations such as universities and make this process quicker and easier.

The new laws have been in the works since the Productivity Commission’s 2017 report on the matter, and the government has been working on the legislation since 2018. They have undergone a number of public consultations and two privacy impact assessments.

Deborah Anton
Plans on ice: Deborah Anton Australia’s National Data Commissioner

Due to the ongoing COVID-19 pandemic, the draft legislation and consultation has been indefinitely put on hold, with no timeframe on what it will be considered.

“We had hoped to consult on an exposure draft of the Data Availability and Transparency Bill in the first half of 2020, though this will now not be possible. We will provide advice on updated timeframes when we are able to,” National Data Commissioner Deborah Anton said in a statement.

In the meantime, the Office of the National Data Commissioner has released a draft data sharing agreement template to help government agencies share data safely and quickly while they wait for the new laws.

“This version of the template is ‘legislation agnostic’, meaning it can be used for general purpose and is not tied to the forthcoming legislation,” Ms Anton said.

The new laws will provide a framework for the sharing of public sector data to accredited entities, which will include other government agencies, state and territory authorities and non-government entities like universities. It guides agencies to take a principles-based test to guide the release and sharing of such data.

“The legislation provides an alternative avenue for government to share data where it is currently not possible or practical to do so, so long as safeguards are met. The legislation will not compel data sharing and will allow agencies to continue to use existing avenues to share when preferred,” the Office of the National Data Commissioner said.

It will allow for a broader scope of data to be shared and “empower” departments to share more data, more often with “trusted users for specific purposes” by removing the “complex legislative barriers and outdated secrecy provisions”.

Late last year the government revealed that the new data sharing regime won’t require consent from individuals. After “robust discussions” it “nuanced” its approach to the issue, and removed the requirement for consent as this could lead to a reduction in the data available.

“While consent is important in certain situations, the societal outcomes of fair and unbiased government policy, research and programs can outweigh the benefits of consent, provided privacy is protected,” they said.

This was despite the government’s own privacy impact assessment acknowledging that the removal of a consent requirement would make it difficult to get the general public on-board with the scheme.

Under the changes, the National Data Commissioner also won’t have the power to prevent any data being shared, instead being tasked with making sure any data sharing is done as safely as possible.

The government committed to the introduction of the legislation in May 2018, originally named the Data Sharing and Availability Act. An issues paper was unveiled for public consultation in July that year, while Ms Anton was appointed as the National Data Commissioner in an interim capacity in August 2018.

Ms Anton and her office consulted with over 600 individuals and 100 organisations on the issues paper between July 2018 and June 2019, with a further discussion paper and privacy impact assessment released in September last year.

Late last year the government announced the legislation would be renamed to be the Data Availability and Transparency Act and another privacy report would be produced.

The Commission received 78 submissions during its latest round of consultations. Ms Anton said they had been “reassured” the legislation is on the right track, although some areas “require further consideration”.

“We heard mixed views on some aspects which may need more protections or consideration such as ethics processes, consent, Indigenous data and commercial use,” Ms Anton said.

In its submission, the Australian Privacy Foundation said it has “serious concerns” with the proposed laws due to Australia’s “weak privacy protections”.

Data experts Dr Chris Culnane, associate professor Benjamin Rubinstein and associate professor Vanessa Teague said the treatment of consent in the discussions was “completely inadequate.

“The best way of determining whether the Australian community supports a particular application of data sharing is to ask for their consent, not for an unaccountable individual to make that decision for them,” they said.

“The purpose of asking for consent is both a test of support and a requirement by the requester to justify why they need access to the data and to be able to justify why the benefits outweigh the risks.”

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