Other legislation

Contributed by Paul Armstrong and current to 1 September 2005

Pharmaceutical Benefits Scheme and Medicare Program Guidelines

Section 135AA of the National Health Act 1953 (Cth) gives the Federal Privacy Commissioner responsibility for issuing legally binding guidelines for the handling of certain health information within the Medicare Program and the Pharmaceutical Benefits Scheme. The Guidelines cover the storage, use, disclosure, and retention of individual claims information, and limit the matching of information, held by the Pharmaceutical Benefits Scheme and the Medicare Program. A breach of the Guidelines constitutes an “interference with privacy” under the Privacy Act.

Data-matching Program (Assistance and Tax) Act

The Data-matching Program (Assistance and Tax) Act 1990 (Cth) (the Data-matching Act) accompanied the extension of the tax file number (TFN) system into the administration of federal government assistance payments. Under the Act, TFNs are used by Centrelink and the Department of Veterans’ Affairs to match data with taxpayer information held by the Australian Tax Office (ATO) to detect inappropriate payments.

The Federal Privacy Commissioner is responsible for monitoring compliance with guidelines issued under section 12(2) of the Data-matching Act and must include in his or her office’s Annual Report an assessment of the extent of the program’s compliance with the Data-matching Act, the guidelines and the Privacy Act.

Spent convictions

Under Part VIIC of the Crimes Act 1914 (Cth), a person is able to disregard some old criminal convictions, and is protected against unauthorised use and disclosure of this information. This is known as the Commonwealth Spent Convictions Scheme.

A “spent” conviction is a conviction which satisfies the following conditions:

• it is 10 years since the date of conviction (or 5 years for juvenile offenders);
• the sentence imposed was a fine, bond, community service order, or term of imprisonment not greater than 30 months;
• the individual has not been convicted of a further offence committed during the 10 (or 5) years waiting period; and
• an exclusion does not apply (see below).

WHAT TYPES OF OFFENCES?

The Scheme covers all convictions for minor federal or territory offences. It also covers convictions for minor state and foreign offences when dealing with Commonwealth authorities. Some states (not including Victoria) have their own spent conviction schemes. The Scheme also covers pardons and quashed convictions.

PROTECTIONS UNDER THE SCHEME

The Scheme offers the following protections:

• the individual does not have to disclose a spent conviction;
• the individual can claim on oath that they were not convicted of an offence; and
• any other person who knows, or ought reasonably to know, about the spent conviction is prohibited from taking into account the conviction or disclosing the conviction.

Complaints of breaches of the Scheme may be made to the Federal Privacy Commissioner.

EXCLUSIONS

Exclusions under the Spent Convictions Scheme are limited to specific organisations needing to know about particular offences for special purposes. For example, if a person is applying for a position involving the care and control of children, the potential employer can find out about any sex offence convictions, or convictions for offences where the victim was a child.

If an agency has an exclusion, it should explain this fact, and what it means for the person concerned. Details of exclusions are available from the Federal Privacy Commissioner’s office.

STATE SCHEME

Telecommunications Act

The telecommunications sector is regulated by both the Privacy Act and specific obligations set out in the Telecommunications Act 1997 (Cth). Those specific obligations include prohibitions on the disclosure of personal information by a telecommunications provider, subject to limited exemptions.

The Telecommunications Act provides for the registration of telecommunications codes under a self-regulatory framework. These codes are developed by industry through the Australian Communications Industry Forum (ACIF), in consultation with the Privacy Commissioner, and may be registered with the Australian Communications Authority (ACA). The Telecommunications Act also requires the ACA to consult with the Privacy Commissioner where:

• telecommunications codes dealing with privacy issues are registered;
• the ACA makes a direction to comply with a telecommunications code; and
• the ACA issues a formal warning concerning a code.

Since 21 December 2001, organisations in the telecommunications industry have been required by the Privacy Act to comply with the NPPs.

There are a number of privacy obligations in other registered telecommunications codes, such as Calling Number Display (C522), Handling of Life Threatening and Unwelcome Calls (C525), Credit Management (C541), Short Message Service (C580) and Integrated Public Number Database (C555) – see www.acif.org.au/publications/codes .