New data laws up for discussion

James Riley
Editorial Director

The federal government wants the right to make more of the citizen data it collects publicly available and sharable for a range of purposes – including research and commercialisation – under proposed new laws put forward for consultation.

The Department of the Prime Minister and Cabinet has released an issues paper outlining the development and design of a possible new Data Sharing and Release (DS&R) Bill.

Human Services Minister Michael Kennan – who also assists the Prime Minister on Digital Transformation – said a new data sharing law would help optimise the use of government data to improve social and economic outcomes for the country.

Michael Keenan: Overseeing the expansion of arrangements for sharing citizen data

“The reforms will first and foremost look to strengthen the existing safeguards around the management of sensitive and private citizen data,” he said.

“But they will also seek to replace the complex web of rules and regulations which currently restrict the release of non-sensitive data, stifling innovation and preventing productivity gains across all sectors of the economy.

“Greater access to data will help governments and industry to make more informed and evidence-based decisions when formulating policy.”

The Bill proposes to “provide authority for sharing and release of data where currently prohibited.”

“The DS&R Bill will not by default compel all data to be shared but rather will support data custodians to make informed decisions and manage risk consistently to enable appropriate sharing and release,” the issues paper stated.

“There are more than 500 existing data secrecy and confidentiality provisions across more than 175 different pieces of Australian Government legislation. The vast majority of these provisions prevent sharing of data, except in specific limited circumstances.”

The government’s commitment to introduce new legislation is part of its official response to a Productivity Commission inquiry on data sharing.

The inquiry made 41 recommendations on how the government could overcome current barriers and issues faced by Australia’s data system.

The government made its intentions clear in the May Budget, when it set aside $65 million over four years for new data sharing and release arrangements.

Shadow minister for the digital economy Ed Husic said he agreed a discussion about data sharing needed to take place, but was sceptical about the actions that would follow.

“The government has been very good at announcing digital programs and legislation but it has been hopeless at taking action to get things through the parliament and getting the detail right,” he told

“Data sharing and data release is an important issue and it is should be part of the discussion we are having as a community. But once we set our standards it is imperative on the government to act.

“We have seen that this can be done: the EU recently implemented of their data protection regulations – and they have to coordinate 28 governments!

The Bill proposes that “transparency and accountability will be at the core of the new legislation” and that “data is shared for the right purposes, with risks appropriately managed.”

To identify if the data can be shared for the “right purposes”, it would need to satisfy a so-called purpose test, including whether it can inform government policy making; support the delivery of government services; assist in the implementation of government policy; and if it can contribute to research and development that has clear and direct public benefits.

Data collected from individuals, businesses and other entities, and data generated internally by Australian Government bodies is in scope. There would be exceptions for national security and law enforcement data.

Under the proposed framework, if the data is released, it is de-identified, and if it’s shared it’s done so appropriately, including through bulk data transfers and access through data laboratories.

Under the proposed Bill, a National Data Commissioner would oversee the data system and provide oversight and guidance on implementing the framework for the new law.

It would also be supported by a National Data Advisory Council made up of representatives from government and selected experts from academia, industry and privacy groups.

The Advisory Council would provide advice on ethical data use, community expectations, technical best practice, and industry and international developments.

The Bill aimed to help “streamline the process for sharing public sector data and improve data safeguards across the public service.”

Current data sharing arrangements between agencies exists are governed by Memoranda of Understanding (MoUs).

The government has previously reported in its 2016 Guidance on Data Sharing for Australian Government Entities paper that the MoU are “unnecessarily complicated, time consuming and do not add value in return.”

The proposed new data law is expected to exist alongside current data safeguards outlined in the Privacy Act 1988, Privacy Amendment (Notifiable Data Breaches) Act 2017 and Archives Act 1983, as well as the national data commissioner and national advisory council.

If the new law does come into effect, it would effectively be a government-wide version of what the Health department has been trying to do with its controversial MyHealth Record Service.

Right now, the federal government is only able to share anonymised data of MHR users that have consented to the use of their health information by secondary parties. This would continue to be the case after the government’s three-month opt-out period that is set to begin in a couple of weeks.

Unless patients choose to actively opt-out during this period, they would automatically be assumed to have consented to allow their de-identified and identified information to be shared with medical and pharmaceutical providers.

A spokeswoman for the Department of Health assured that any MHR data will not be sold for profit or made available for solely commercial use.

“The Department of Health is working closely with the Department of the Prime Minister and Cabinet to ensure the Data Sharing Bill does not undermine the objectives of the My Health Record system, and recognises the commitments already made by the Government in response of the secondary use of My Health Record information,” she said.

Medical practitioners and institutions have been signing up patients to the system on a voluntary, opt-in basis for five years, accruing around five million records. However, due to the low uptake, the government recently decided to move it to a controversial opt-out system.

The consultation period for the new law closes on 1 August 2018.

Do you know more? Contact James Riley via Email.

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