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Public Sector (Data Sharing) Bill – Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I raised this in the second reading but it was obviously too early for the minister, on behalf of the government, to respond. I think he gave an immediate response to earlier contributions made on the second reading so I want to pursue some of the issues I raised in the second reading. With the issue I raised, there are many examples, but one clear example is the YourSAy website where the government, I think, has over 50,000 registered users, with email addresses and names, indicating their attitude to various political issues of the day that the government is seeking to canvass.

Since I spoke at the second reading, I have had my office look at various government departments and agencies. The most recent example was in the nuclear royal commission debate. There is an agency of government, which has the acronym CARA (exactly what that stands for I forget now), which manages the waste dump process. It has a well organised process where tens of thousands of members of the public could express their views in relation to the controversial issue of the nuclear waste dump that the Weatherill Labor government (supported by minister Malinauskas) is supporting in South Australia.

The Hon. P. Malinauskas: I stick to what I believe in.

The Hon. R.I. LUCAS: Indeed, but we will not debate that here. So, that was the second example. Regarding Transforming Health, there is a very considerable interactive process between SA Health and the community in terms of expressing particular points of view. In the environment area, there are a number of areas on the Department for Environment’s website where people have been able to give their name and email addresses, and that is collected and stored somewhere in that department.

These are examples of where government departments and agencies have stored the names of individuals, their email address and their particular view on a particular political issue that the government has been seeking to canvass. If I can take, in the first instance, the YourSAy website: to which particular agency is that information currently restricted to? Is it just the Department of the Premier and Cabinet?

The Hon. P. MALINAUSKAS: Maybe if I read out some remarks regarding clause 1 generally; I think that may address some of the questions that the Hon. Mr Lucas has raised. On 15 November 2016, the Hon. Mr Lucas in this house asked the government a number of questions regarding the bill. I thank the honourable member for his contribution and provide answers to those questions. I take the opportunity, first, to reassure the house that the intent of the bill is not about government obtaining lists of email addresses to circulate materials for political purposes.

As I explained to the house, the bill is about ensuring that government agencies can share valuable government data with each other to improve evidence-based policy development and service delivery to benefit members of the public. The government respectfully disagrees with the Hon. Mr Lucas that the provisions of the bill will be used for purely political purposes.

Regarding YourSAy, the data collected from the YourSAy website is held in a secure database and is covered by the privacy policy outlined in a link available on the website. I can read out the link: http://yoursay.sa.gov.au/privacy-policy. The privacy policy tells users about the information collected and how it is used and forms part of the terms of use of the website. Of particular interest to the Hon. Mr Lucas would be if the information collected from users, which can include certain personal information, is protected and handled in accordance with the South Australian government’s information privacy principles (IPPs).

If personal information needs to be shared with a third party, then the IPPs are complied with. A copy of the government’s IPPs can be obtained from the Department of the Premier and Cabinet’s website, and a link is provided on YourSAy to that website: dpc.sa.gov.au/privacy. Clause 4(10) of the IPPs is most relevant to disclosure of personal information and states that:

(10) An agency should not disclose personal information about some other person to a third person for a purpose that is not the purpose of collection (the secondary purpose) unless:

(a) the record-subject would reasonably expect the agency to disclose the information for the secondary purpose and the secondary purpose is related to the primary purpose of collection;

(b) the record-subject has expressly or impliedly consented to the disclosure;

(c) the person disclosing the information believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious threat to the life, health or safety of the record-subject or of some other person;

(d) the disclosure is required or authorised by or under law;

(e) the disclosure is reasonably necessary for the enforcement of the criminal law, or of a law imposing a pecuniary penalty or for the protection of the public revenue or for the protection of the interests of the government, statutory authority or statutory office-holder as an employer;

(f) the agency has reason to suspect that unlawful activity has been, is being or may be engaged in, and discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities; or

(g) the agency reasonably believes that the disclosure relates to information about an individual that suggests that the individual has engaged or may engage in illegal conduct or serious misconduct in relation to a person; and

(i) the agency reasonably believes that the disclosure is appropriate in the circumstances; and

(ii) the disclosure complies with any guidelines issued by the Minister for the purposes of this clause.

However, information submitted through the YourSAy website may be provided in de-identified form to researchers at the University of Adelaide or other universities. The information is used for research purposes to evaluate and improve YourSAy and other public engagement processes and may be published in an academic journal. By submitting information to the YourSAy website, individuals provide their consent to being involved in the research. No identifying information is provided to the researchers.

I advised the house on 15 November 2016, that should this bill be passed the government will engage in consultation on the regulations that may be required to be made under this legislation, including provisions that might exempt certain data from the operation of the legislation and include or exclude certain agencies, persons or bodies from the operation of the act. A reasonable assumption is that the regulations might exclude sensitive criminal intelligence data and agencies such as the Independent Commission against Corruption and the Office for Public Integrity. During this process, consideration is likely to be given to whether data held by Revenue SA or ReturnToWorkSA, and other health-related data and the relevant agencies, ought to be exempt from the act.

Regarding deceased persons, I advise the house that the definition of ‘individual’ in the bill includes deceased persons as well as living persons, so that personal information about a living or deceased person is subject to considerations of de-identification under the trusted access principles. This way, the attention of all data providers is drawn to the need to have regard to the sensitivities of bereaved family members and other similar issues when considering data requests.

Tabling of decisions: the Hon. Mr Lucas is concerned that the minister’s decisions under clause 9(1) to direct public sector agencies to share data ought to be made public, including by tabling the decisions before parliament. The government respectfully disagrees that this measure is necessary. However, the government will support an amendment filed by the Hon. Mr McLachlan for the publication in the Gazette of decisions made under clause 9(1) and the laying of a notice of such decisions before each house, provided that the period of laying the notice be increased to six sitting days.

The government will also support an amendment to be moved by the Hon. Mr McLachlan that would see decisions under clause 9(1) published in an annual report, and also decisions made under clause 8 in relation to public sector data that contains personal information. In addition, the government will support a further amendment moved by the Hon. Mr McLachlan for a review of the legislation on its third anniversary. The government proposes to move its own amendment so that the purposes for data sharing under clause 8 are recorded in writing, and hopes to receive member support for the amendment. The government considers these amendments, taken together, to provide sufficient oversight of decisions made under clauses 8 and 9.

Further use of disclosure of data: the minister has a power under clause 14 to approve the use or disclosure of shared data for a purpose that is different from the original purpose for which the data was shared. It is not anticipated that this power will be used extensively. It will only be used where appropriate to do so. This provision was inserted to avoid the inconvenience of agencies needing to comply with clauses 8 or 9 again where it should strictly be unnecessary to do so.

Although these decisions are not among those listed in the Hon. Mr McLachlan’s amendment for inclusion in the annual report, there is no reason why the annual report could not also provide details of approvals given under clause 14. The government will support an amendment filed by the Hon. Mr McLachlan for the publication in the Gazette of decisions made under clause 14 and the laying of a notice of such approvals before each house, provided that the period of laying the notice be increased to six sitting days.

Delegations: as is common in modern legislation, the minister may delegate his or her functions and powers. It is not anticipated that the minister will inappropriately exercise the minister’s powers of delegation, nor that any delegate would improperly exercise their powers. The government will support an amendment filed by the Hon. Mr McLachlan for the publication in the Gazette of delegations of the minister’s functions and powers and the laying of a notice of such delegations before each house, provided that the period of laying the notice be increased to six sitting days.

The Hon. R.I. LUCAS: I thank the minister for those responses on behalf of the government. Regarding the issue of government access, the minister in part of that response was talking about release of information to university researchers and in that process it being depersonalised. That is not really my concern, as I outlined in the second reading contribution. My concern is the inappropriate use by governments of information that they have collected. I gave the example where, during the 2010 election campaign, the Premier used a government database of people within the education department and sent information on the Labor Party’s policy to all those people.

If you are in government, if you have access to the database of all teachers and SSOs and ancillary staff and others within the education department, at the press of a button being able to send the Labor Party education policy, prior to an election, during a caretaker convention period, is an enormous advantage for the government of the day. This is not a hypothetical, this was an actual case, a complaint which was lodged. At the time, of course, no action was taken because there was really no mechanism to take action, other than to complain to the person in charge of the caretaker convention, who was a CEO of the Premier’s department. Put that to the side.

It is occurring, and it is not an issue of whether it is inappropriately being given to independent academic researchers, or anything like that. Whilst I mention it, I do not think it is really an issue of the premier of the day being so blatant as to send it off to Reggie Martin in the Labor Party and to have him contact all the people. That is not necessary. The premier and the ministers in the government of the day, particularly if you have former Labor Party staffers who are the chief executives of the Department of the Premier and Cabinet who are at that particular level as well, it is the issue of the potential abuse and misuse of these government databases for political purposes in periods leading up to an election period.

The questions that I have directed therefore are not about the academic researchers, they are about the capacity with this data sharing, and particularly, as the minister has said, and he read out all of the privacy principles and all those things that related to YourSAy, for example. That is only one of the many websites, and I have not had time, obviously, because I had not heard that response, to check whether the same privacy principles relate to all the recreational fishers who contact the environment department or the fishing department about their views for and against marine parks or whatever it might happen to be.

Put that to the side, if we just address those particular issues, under clause 14 the minister acknowledged in his response, because I raised this in the second reading:

A data recipient must not use or disclose public sector data received pursuant to an authorisation under section 8 or section 9 other than for a purpose for which it was provided unless—

(a) the Minister, after consultation with the data provider, approves the use or disclosure;

Clearly, the minister can authorise the use or disclosure of information other than for the purpose for which it was gathered. I think the minister’s response acknowledges that and he said there is not any mal-intent in relation to this particular provision that exists in the legislation. I accept that the minister is reading the advice that has been given. We have seen misuse and abuse of the government databases and information that is available already over the last six years.

My questions are really in relation to, under this particular legislation—they are my questions but also my comments—what will be the restrictions that prevent a premier, with a compliant CEO of his or her department, being able to use information contrary to the use for which it was originally provided by exercising the powers under 14(a)? The government’s response is, ‘Well, that’s not the intention. You will have to accept that we’ll act honourably in relation to these things.’ I do not accept that particular assurance.

Specifically, in relation to the exchange of information, does the minister concede, with the provisions and the explanation that he has given, that for example in relation to the CEO of DPC—if he now controls the YourSAy database, under the privacy principles that he was talking about—it will be possible under this for all the other databases to be sent to, exchanged with, the Department of the Premier and Cabinet, with the powers under section 14 and the other related powers that he has referred to?

For example, anyone who has corresponded with the health department on Transforming Health, and the various other ones I have referred to, does the government accept that there would be the power to transfer all of the information on those databases to the Department of the Premier and Cabinet, if the minister utilises clauses like section 14 and the other clauses that would be required?

The Hon. P. MALINAUSKAS: The government is willing to support one of the amendments that has been moved by the Hon. Mr McLachlan, which I think should alleviate some of the concerns that the Hon. Mr Lucas has raised, in that all decisions that the minister makes in the context of the clause that you refer to will be made publicly available through both the Gazette and also be laid before both houses. The government believes that that should provide confidence to the chamber that any such decisions will be public and, of course, will be held to account in due course.

The Hon. R.I. LUCAS: The minister accepts that through the gazettal, of course, it is not disallowable, so there would be, potentially, public knowledge of a decision that has been taken within the—I think the six sitting days, is it?

The Hon. A.L. McLachlan: Yes.

The Hon. R.I. LUCAS: Within six sitting days, but, of course, in a period leading up to an election, the house is not sitting. So, if the house rises in November 2017, the election is not until March 2018, there can be a gazettal in December and it does not have to be advised. Putting that particular convenience and issue to the side, my question is: can the minister confirm that clearly it is not disallowable in any way, is it? It will just be public notice of the decision and there is not much that can be done about it other than make a complaint about it, if you wanted to?

The Hon. P. MALINAUSKAS: The Hon. Mr Lucas has served in this chamber for a very long period of time and I do not think it is appropriate or necessary for me to be lecturing him about various parliamentary procedures. I think the honourable member knows all too well what is disallowable and what is not, and what gazetting means and so forth. I do not intend to lecture him and provide him answers to questions that I am pretty sure he is fully conscious of.

The Hon. R.I. LUCAS: I was not asking for a lecture: I was just asking for an answer to a question, but let me infer from that that the minister does not want to use the words, ‘The government agrees that it would not be disallowable.’ It would actually be the public announcement of a certain delay period of a government decision and the power of the parliament or the opposition in relation to that is negligible, other than, obviously, to complain about it publicly.

I am not sure why the minister was reticent about answering the question. As I said, I was not asking for a lecture on the particular issue. Can I go back to the question. The minister said, ‘If the minister takes this decision it will at least be gazetted and people will know about it.’ Can I have the minister confirm that what I have asked is, essentially, correct? That is, if the minister utilises these powers and has a supportive chief executive officer, that the information that exists on government databases in the environment department or in the health department could be transferred to the Department of Premier and Cabinet onto a central database held in the Department of Premier and Cabinet?

The Hon. P. MALINAUSKAS: In that specific question that you most recently asked, the answer to that question is yes. The intent of the bill is for information to be shared across government departments for the purpose of better public policy outcomes. It is not designed, or framed in such a way, as to try to deliver a political outcome: rather, a better public policy outcome.

The Hon. R.I. LUCAS: Whereabouts in section 14, though, does it say that the only reason for a minister to not follow the restriction, which says the data should only be used for the purpose it is provided for—where does it say in that particular exemption under 14(a) that the minister can prove the use or disclosure that can only be used, in essence, for a public policy purpose, as opposed to any other purpose?

The Hon. P. MALINAUSKAS: In respect to the specific provision the Hon. Mr Lucas is referring to, it may not appear there, but I understand that all decisions and actions that occur under the act have to be in accordance with the objects of the act. The objects of the act, I am advised, clearly spell out what the purposes and intent of this is, and that is as I articulated earlier.

The Hon. R.I. LUCAS: Chair, the reason for having exemptions—there might be objects of the act, but clearly under 14(a) there is no restriction. It makes it quite clear that the minister, after consultation, can approve the use or disclosure. There is no restriction as the minister has just acknowledged, but I will further pursue that issue in clause 14.

The Hon. A.L. McLACHLAN: I should indicate to the chamber that there are a number of amendments, which have been filed by the opposition. Some I will move, some I will not. I thought I would clarify that for the benefit of the chamber before we proceed into the other clauses.

The opposition will be moving amendment No. 1 [McLachlan-1], which is to insert the word ‘written’ before ‘approval’. My understanding is that the government does not have an objection to that particular amendment. On that set of amendments, I will not be moving amendment No. 2 [McLachlan-1]. That clause will be replaced in another suite of amendments, which I will refer to shortly.

I will not be moving amendment No. 3 [McLachlan-1]: requirement to record reasons. The opposition will be accepting the government’s amendment in relation to the recording of the decisions. I will be moving amendment No. 4 [McLachlan-1] and amendment No. 5 [McLachlan-1]. As the honourable minister has indicated, the government is supporting those amendments, and they relate to the annual report and a subsequent review.

I turn to my second set of amendments. I will be moving amendment No. 1 [McLachlan-2]. As I understand it, this is in agreement with the government. It relates to a recasting of the safe data provisions, which relate to putting a primary obligation to remove personal data. That may allay some of the concerns of my honourable friends. It changes from the first set of amendments that I filed because I changed the words in relation to protection of children to an exemption for wellbeing and welfare, and there is a further clause being inserted, which is allowing the sharing of personal information for a prescribed purpose. Obviously, that is by regulation.

I will also be moving my third set of amendments: amendment No. 1 [McLachlan-3], amendment No. 2 [McLachlan-3], and amendment No. 3 [McLachlan-3]. In there, I refer to one sitting day. I will be seeking to amend that amendment by deleting the word ‘one’ and inserting the word ‘six’. I will take some advice from the Clerk on technically how I do that. For the benefit of members, that is how I intend to proceed with the amendments.

Progress reported; committee to sit again.

In committee (resumed on motion).

Clause 1.

The CHAIR: Does any other member have anything to contribute to clause 1? If not, I put that clause 1 stand as printed.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

P age 5, line 33 [clause 6(4)]— Before ‘approval’ insert ‘ written

It is part of the theme of these amendments to give physicality to some of the decisions being made and thereby assist when there is an annual review and an annual report.

The Hon. P. MALINAUSKAS: The government will be supporting this amendment. The amendment would require the minister to give written approval for the ODA to direct a public sector agency to provide data to the ODA for the purposes of it carrying out its functions. This amendment is not wholly necessary, as it would reflect what would occur in practice in any event, namely, the minister would give approval in writing rather than verbally. However, the government considers that this amendment is not unreasonable and would not prejudice the effectiveness of the legislation and so supports the amendment.

Amendment carried; clause as amended passed.

Clause 7.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–2]—

Page 6 line 29 to page 7 line 3 [clause 7(4)]— Delete subclause (4) and substitute:

(4) Safe data

(a) If data to be shared and used contains personal information, the personal information must be de-identified unless—

(i) the person to whom the personal information relates has consented to the sharing and use; or

(ii) the sharing and use of the personal information is reasonably related to the original purpose for which it was collected and there is no reason to think that the person to whom the information relates would object to the sharing and use; or

(iii) the sharing and use of the personal information is in connection with a criminal investigation or criminal proceedings or proceedings for the imposition of a penalty; or

(iv) the sharing and use of the personal information is in connection with the wellbeing, welfare or protection of a child or children or other vulnerable person; or

(v) the sharing and use of the personal information is reasonably necessary to prevent or lessen a threat to the life, health or safety of a person; or

(vi) the purpose of the sharing and use of the personal information cannot be achieved through the use of de-identified data and it would be impracticable in the circumstances to seek the consent of the person to whom the information relates; or

(vii) the sharing and use of the personal information is for a prescribed purpose or occurs in prescribed circumstances;

(b) Data to be shared and used for a purpose must be assessed as appropriate for that purpose having regard to—

(i) whether the data is of the necessary quality for the proposed use (such as being accurate, relevant and timely); and

(ii) whether the data relates to people; and

(iii) if data containing personal information is to be de-identified, how that de-identification will be undertaken and whether the data may be re-identified, and if so, how it may be re-identified.

I understand the government will be supporting this amendment. The approach taken to this amendment by the Liberal opposition has been that we would seek to have the data depersonalised where possible, subject to certain exemptions. As indicated by the minister, the bill as drafted, enables the Office of Data Analytics, the ODA, to direct that a public sector agency provides public sector data to the ODA, but they must first obtain approval from the minister.

This amendment places a mandatory requirement, and I ask members to note that the inserted (4)(a) uses the word ‘must’, on the public sector agencies to identify personal information. The amendment incorporates elements from the commonwealth and New South Wales information privacy principles and provisions commonly contained in privacy legislation throughout Australia, although the amendments have been tailored to apply specifically to South Australia, as we have no privacy law that covers state government, local government or South Australian universities. The amendments have also been crafted to encapsulate the concepts contained in the existing South Australian government circulars, such as the Department of the Premier and Cabinet Circular PC012.

For the benefit of honourable members, the list of exemptions includes if the person has consented to the sharing of their personal data. This provision is obviously standard in information privacy principles. The second exemption is if the sharing and use of personal data is reasonably related to the original purpose for which it was collected, and there is no reason to think that the person would object.

Again, the form of drafting is from standard privacy principles, and there is jurisprudence being built in the courts around this. If the data relates to criminal investigation proceedings or the data relates to the welfare and protection of children—members will recall that the government placed great emphasis on this in introducing this bill, although its concept was well before the issues relating to child protection—it will be used to better share information in response to the recommendations of the Nyland royal commission.

Also, there is an exemption for the use of data which is reasonably necessary to prevent and lessen a threat to life or health or safety of a person and an all-encompassing provision that allows for regulations to provide for prescribed purpose. Of course, members will be able to seek to disallow any other initiative from the government relating to exemptions, if they were to appear in regulation. (4)(b) of the inserted clause reproduces the original conditions which existed in the government’s bill. I recommend the amendments to the members.

Amendment carried; clause as amended passed.

Clause 8.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

P age 8, line 1 to line 3 [clause 8(2)]— Delete subclause (2) and substitute:

(2) Before public sector data is provided to a public sector agency under subsection (1)—

(a) the public sector agency must make a written record of the purpose or purposes for which the public sector data is proposed to be provided and used as agreed with the public sector agency that is to provide the data; and

(b) the public sector agency that is to provide the data must apply the trusted access principles and be satisfied that the provision and use of the data is appropriate in all the circumstances.

I thank the honourable member for his third amendment on [McLachlan–1] and appreciate the motivation behind that particular amendment. The government had concerns about the drafting of this amendment and, as a result, is moving its own amendment, which we believe addresses the honourable member’s concerns about the need to make a written record on the purpose for which data is proposed to be provided and shared between public sector agencies. This, in turn, will enable both the annual report and the review of the act to be completed both effectively and efficiently.

The government’s proposed new paragraph 8(2)(a), in effect, requires the public sector agency that is to receive data to agree with the data provider what the purpose is for the provision and use of the data and to make a written record of that purpose. The government’s amendment aligns with the Hon. Mr McLachlan’s fourth and fifth amendments, on [McLachlan–1], relating to annual reports and a review of the act, which the government is supporting. I urge support for the government amendment.

The Hon. A.L. McLACHLAN: The opposition will be supporting this amendment.

Amendment carried; clause as amended passed.

Clause 9.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–3]—

Page 8, after line 27— Insert:

(6) The Minister must—

(a) as soon as practicable after making a direction under subsection (1), cause notice of the direction to be published in the Gazette; and

(b) within 6 sitting day s of making a direction under subsection (1), cause notice of the direction to be laid before each House of Parliament.

(7) A notice under subsection (6) must specify the data provider, the data recipient and the general nature of the public sector data to which the direction relates.

The Hon. P. MALINAUSKAS: The government supports this amendment. The amendment operates when the minister makes a direction under clause 9 that a public sector agency provide data that it controls to another public sector agency. This direction may include data that is otherwise exempt from the voluntary data sharing provisions between agencies under clause 8.

Before making such a direction, the minister must have regard to the trusted access principles and be satisfied that the sharing and use of the data is appropriate in all circumstances. The amendment requires that the minister publish a notice of the direction in the Gazetteand within six sitting days have the notice laid before each house. The government generally supports this amendment and commends it to the house.

Amendment carried; clause as amended passed.

Clauses 10 to 13 passed.

Clause 14.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–3]—

Page 10, after line 24— Insert:

(2) The Minister must—

(a) as soon as practicable after giving an approval for the purposes of subsection (1)(a), cause notice of the approval to be published in the Gazette; and

(b) within 6 sitting day s of giving an approval for the purposes of subsection (1)(a), cause notice of the approval to be laid before each House of Parliament.

This amendment is in line with the previous amendment to clause 9, and the opposition is seeking to ensure that the parliament and the community are aware of actions of the minister so that they can hold the minister to account for his judgements.

The Hon. P. MALINAUSKAS: The government supports the amendment.

Amendment carried.

The Hon. R.I. LUCAS: My question in relation to clause 14 follows the questions I was referring to earlier. Clause 14 has been amended, and we also amended earlier the safe data provisions under clause 7. As my colleague the Hon. Mr McLachlan indicated with safe data, with the new amendment, which the government supported:

…if the data that is to be shared and used contains personal information, the personal information must be de-identified unless—

and there is a whole series of possible exemptions. The broadest, potentially, in the context of my question is:

the sharing and use of the personal information is reasonably related to the original purpose for which it was collected and there is no reason to think that the person to whom the information relates would object to the sharing and use.

Clearly, that is a judgement that the public servant or the minister would make. It is not challenged—ultimately, someone could take it to court, I guess, but, essentially, it is a judgement call that the minister or the public servant takes in relation to whether or not it is reasonably related to the original purpose for which it was collected. When I was referring earlier to the possibility of harvesting email addresses and names from various government departments and agencies into a central repository, such as DPC, I referred to clause 14, which provides:

A data recipient must not use or disclose public sector data received pursuant to an authorisation under section 8 or section 9 other than for a purpose for which it was provided unless—

(a) the Minister, after consultation with the data provider, approves the use or disclosure;

In response to earlier questions, the minister’s advice was that it is the minister’s decision, in the end, as to whether or not he or she is going to approve the use or disclosure for a purpose other than the purpose for which it was originally received.

My question is: when one looks at this act with the new amendment in clause 7(b)—which provides that ‘you must, unless it is for a reasonable purpose’, and, under clause 14, ‘the minister can without any reason use it for a purpose other than the purpose for which it was originally collected’—what is the ultimate impact? Even with the new amendment in safe data provision that has been included, and we all support it, can the minister, if he deems fit, use clause 14 and approve the use or disclosure for a purpose for which it was not originally collected?

The Hon. P. MALINAUSKAS: Your question, as I understand it—and correct me if I am wrong—pertains to the question of whether or not a minister could later use their authority granted to them under this bill—

The Hon. R.I. Lucas: Under clause 14.

The Hon. P. MALINAUSKAS: —under clause 14, to be able to allow for information to be disseminated for a political purpose.

The Hon. R.I. LUCAS: No, you did not understand my question. We will come to the political purpose ultimately. What I am saying is: under clause 14, does the minister have the power? I am not a lawyer, and neither is the minister, but he has legal advice available to him. On my reading as a non-lawyer, now that we have the safe data provision with clause 14 still in there, a minister (Labor or Liberal) could direct that, under clause 14, data collected by a Transforming Health department, for example email addresses, be transferred to the DPC. Whether it is used for political purposes or not is a separate argument. I want to know whether under clause 14, on my reading, if the minister could still do that, and we could still have in DPC a central collection of all emails and contact points from various departments and agencies that have come into the various arms of government.

The Hon. P. MALINAUSKAS: My advice is that the answer to that question is yes, that could occur.

The Hon. R.I. LUCAS: I do not propose to delay the proceedings much longer than that. I support all the amendments that we have put in there with agreement between the government and the opposition in an endeavour to be transparent and accountable. In the end, the issue still remains that the minister will have that power. I have highlighted the concerns I have seen with the abuse of these particular provisions in the 2010 election and in a slightly different way in the 2014 election. We are leading into a 2018 election, and I have concerns.

If a premier, with a compliant CEO in the DPC, has access to massive databases of people who have expressed views on political issues, he does not have to give it to his Reggie Martin or his party equivalent. He has that capacity, through that database, to directly provide information to all of those people on a whole variety of issues centrally as the leader of the government and as the premier.

As I said, in 2010, it was as blatant as sending copies of the Labor Party policy on education to teachers and SSOs and other people within the education department. It was not even concealed along the lines of being a government announcement on this particular issue. It was actually the Labor Party policy document. Whoever the state secretary was at the time, it was authorised by the state secretary of the Labor Party. It was as brazen as that at the time. I accept the fact that the minister in charge of the bill here can say and do nothing more than that. Based on the advice he was given, he has answered the question.

I flag my ongoing concern in relation to this. The amendments that have been moved will at least potentially shine a light, although, as I highlighted earlier, the issue of six sitting days means that if there are no sitting days between November 2017 and March 2018, when there is an election, then these particular issues will not see the light of day until after the election. So, a premier, a government and a CEO who wanted to use these provisions for their own purposes would be able to, if they so chose.

Clearly, we would hope that is not going to be the case, that they are not used in that way but are actually used for the purposes for which the bill was originally conceived, and that was in the public interest to share data for the better delivery of services in South Australia. I hope that is what, in the end, we see coming out of the bill, not it being used as a vehicle for a premier and a government to be able to get its message, in a more targeted way, to a large number of public servants or people who have corresponded with the Public Service.

Clause as amended passed.

Clause 15.

The Hon. A.L. McLACHLAN: I move:

Amendment No 3 [McLachlan–3]—

Page 10, after line 37— Insert:

(3) The Minister must—

(a) as soon as practicable after delegating a function or power under subsection (1), cause notice of the delegation to be published in the Gazette; and

(b) within 1 sitting day of delegating a function or power under subsection (1), cause notice of the delegation to be laid before each House of Parliament.

(4) A notice under subsection (3) must specify—

(a) the delegate and the delegated functions or powers; and

(b) any conditions or limitations imposed on the delegation; and

(c) whether the instrument of delegation provides for further delegation by the delegate.

A further amendment to the inserted clause (3)(b) is to strike out the number ‘1’ and insert ‘6’, and strike out the word ‘day’ and insert the word ‘days’. This amendment is consistent with the previous amendments to clause 14 and clause 9 in relation to requiring transparency of decision-making by the minister.

The Hon. P. MALINAUSKAS: The government supports the amendment.

Amendment as amended carried; clause as amended passed.

Clause 16 passed.

New clause 16A.

The Hon. A.L. McLACHLAN: I move:

Amendment No 4 [McLachlan–1]—

P age 11, after line 8— After line 8 insert:

16A—Annual report

(1) The Minister must, as soon as practicable after each 30 June, cause a report to be prepared about the operation of this Act during the year ended on that 30 June.

(2) Without limiting subsection (1), a report relating to a year must include the following matters:

(a) in relation to the provision of public sector data pursuant to a direction of ODA under section 6(4), a list of such directions including, in respect of each direction—

(i) the identity of the data provider and data recipient; and

(ii) the nature of the data; and

(iii) whether the public sector data contained personal information and whether the data was, at the time of the direction, exempt public sector data;

(b) a summary of the results of data analytics work undertaken by ODA and made available to public sector agencies, the private sector and the general public;

(c) in relation to the provision of public sector data containing personal information under section 8(1), a list of all instances of such provision including the identification of the data provider and data recipient, the general nature of the data and the purpose for which the data was shared;

(d) a list of all directions made by the Minister under section 9(1), including, in respect of each direction—

(i) the identification of the data provider and data recipient and the general nature of the public sector data; and

(ii) the purpose for which the public sector data was to be provided; and

(iii) whether the direction related to public sector data containing personal information and whether the data was, at the time of the direction, exempt public sector data;

(e) a list of all agreements entered into pursuant to section 13(1) including, in respect of each agreement—

(i) the identification of the parties to the agreement and the general nature of the data being shared; and

(ii) whether the agreement related to the sharing of public sector data containing personal information and whether the public sector data was, at the time of sharing, exempt public sector data.

(3) The Minister must, within 6 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of the Parliament.

The purpose of this new clause is to provide for an annual report in relation to the operation of the bill when enacted. Obviously, it is post action so it does not address, necessarily, some of the concerns raised by the Hon. Rob Lucas but it will allow the parliament to review the operation of the act and determine whether it is making a positive impact on policy development or is being used for suboptimal reasons or reasons outside the intention of the objects of the act.

The Hon. P. MALINAUSKAS: The government again considers that this amendment in respect of an annual report is not unreasonable and therefore supports the amendment.

New clause inserted.

Clause 17 passed.

New clause 17A.

The Hon. A.L. McLACHLAN: I move:

Amendment No 5 [McLachlan–1]—

P age 11, after line 31— After line 31 insert:

17A—Review of Act

(1) The Minister must, as soon as practicable after the third anniversary of the commencement of this Act, appoint a retired judicial officer to conduct a review of the operation of this Act.

(2) The Minister and any other person performing functions and powers under this Act must ensure that a person appointed to conduct a review is provided with such information as they may require for the purpose of conducting the review.

(3) A report on a review under this section must be presented to the Minister within 6 months of the appointment under subsection (1).

(4) The Minister must, within 6 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament.

(5) In this section—

judicial officer means a person appointed as a judge of the Supreme Court or the District Court or a person appointed as judge of another State or Territory or of the Commonwealth.

This amendment provides for a review of the act by a retired judicial officer. Again, it could be considered to arise out of an abundance of caution on how the act is used. The view of the opposition was that, given that we do not have a privacy act and we do not know when we will have one or if we will have one, it would be appropriate to see how these provisions work and whether there are any significant or concerning invasions of individuals’ privacy in the transfer of data. I commend the amendment to members.

The Hon. P. MALINAUSKAS: Again, the government is happy to support this amendment. It sees it as appropriate and not unreasonable.

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) ( 15:53 ): I move:

That this bill be now read a third time.

Bill read a third time and passed.

See full session on Hansard