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.

Sitting suspended from 13:00 to 14:17.