Sweeping data sharing scheme hits roadblock


Denham Sadler
National Affairs Editor

After three years in the works, the government’s long-awaited data sharing scheme for public sector information has been knocked back at the first test, with a group of senators questioning a lack of detail and privacy safeguards in the legislation.

The Data Availability and Transparency Act, which allows for far greater sharing of public sector data between departments and agencies and private sector organisations such as universities, was released for consultation last year before being introduced to Parliament in December.

It allows for a new way to share this data – which had previously been blocked by secrecy provisions or other non-disclosure prohibitions – and stems from a 2017 Productivity Commission report, with the Coalition mulling the reform since 2018.

Data sharing
Data sharing: Senate committee already lukewarm on proposed legislation

There is no way to opt-out of the new scheme, and consent will be required unless it is “unreasonable or impracticable” to obtain it.

In its first report of the year, the Senate’s Standing Committee for the Scrutiny of Bills sounded the alarm on parts of the legislation, including the potential for data to be shared without individual consent.

“The committee is concerned that there is a significant amount of flexibility in the meaning of ‘unreasonable’ and ‘impracticable’ in this context, and that this may undermine the effectiveness of clause 16 as a safeguard against undue trespass on the privacy of individuals whose data may be shared under the scheme,” it said.

The committee also questioned a lack of focus on privacy in the bill.

“In contexts where commercial and economic interests may be considered to factor into the ‘public interest’, the committee is concerned that privacy interests are not clearly central to the operation of the scheme.”

“The committee is concerned that there is a risk that individuals’ interest in their personal information being kept private may not be given sufficient weight in an evaluation of public interest. Further, it does not appear that the Commonwealth entity making initial decisions with respect to sharing of data must consult experts or seek other external input.”

The legislation also doesn’t include many of the key elements of how the scheme will function, with these to be included in legislative instruments.

“The committee’s view is that significant matters, such as privacy safeguards for data sharing, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided,” the committee said.

“In this instance, while the explanatory memorandum explains the approach of using legislative instruments rather than regulations to establish data codes, there is no explanation of why these matters cannot be included in primary legislation.”

The scope of the data-sharing is extremely wide and risks impacting the privacy of Australians, the senators warned.

“The committee notes that a broad construction of the permitted purposes for data sharing risks interpretations which may unduly trespass on privacy,” they said.

“The committee’s scrutiny concerns in this regard are heightened by the breadth of the application of the bill, in particular that data may be shared with private sector entities with no requirements that the safeguards that apply to, for example, university research, apply to these entities.”

Under the scheme, individuals will not be able to challenge a data-sharing decision, something the senators also questioned in the report.

“It is not clear to the committee why individuals whose privacy interests may be affected should not have access to merits review. The committee notes that, as many decisions under the scheme will affect individual interests as a class, most individuals will be excluded from the initial decision-making process,” the senators said.

The senators put the case for amendments to the bill, including a public interest test prioritising privacy, guidance about what circumstances consent won’t be required, clarifying the scope of permitted data, and minimum standards for ethics approvals for private entities seeking to access the data.

The DATA bill is now also the subject of a Finance and Public Administration Legislation Committee inquiry.

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