(d) ensure that his or her advice is, within the limitations of the powers of the Commonwealth, capable of acceptance, adaptation and extension in any State or Territory; and
(e) ensure that his or her directions and advice are consistent with the Australian Privacy Principles.
85ZZA Complaints to the Information Commissioner
(1) A person may complain to the Information Commissioner about an act or practice of another person or of a Commonwealth authority or State authority that may be a breach of Division 2 or 3.
(2) A complaint shall be in writing.
(3) It is the duty of members of the Information Commissioner’s staff to give appropriate help to a person who wishes to make a complaint and wants help to formulate the complaint.
(4) The complaint shall specify the respondent to the complaint.
85ZZB Identity of respondent to complaint
(1) If a complaint is about an act or practice of a Commonwealth Department or a State Department, or an officer of such a Department, the Secretary or head of the Department is the respondent to the complaint.
(2) If a complaint is about an act or practice of another Commonwealth authority or State authority, or a member or officer of such an authority, being an authority that is within the responsibility of a Commonwealth or State Minister but not within the responsibility of a Commonwealth Department or a State Department, the Minister is the respondent to the complaint.
(3) If a complaint is about an act or practice of any other Commonwealth authority or State authority, or a member or officer of such an authority, the chief executive officer of the authority is the respondent to the complaint.
(4) If a complaint is about an act or practice of a person other than a Commonwealth authority or a State authority, that person is the respondent to the complaint.
85ZZC Investigation of complaints
(1) The Information Commissioner shall consider a complaint, and shall investigate the act or practice complained of, if the act or practice may be a breach of Division 2 or 3.
(2) The Information Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made if satisfied that:
(a) the act or practice is not a breach of Division 2 or 3;
(b) the complainant has not complained to the respondent about the act or practice;
(c) the complainant has complained to the respondent, and that the respondent:
(i) has dealt, or is dealing, adequately with the complaint; or
(ii) has not yet had an adequate opportunity to deal with the complaint;
(d) the complaint was made more than 12 months after the complainant became aware of the act or practice;
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(e) the complaint is frivolous, vexatious, misconceived or lacking in substance;
(f) the act or practice is the subject of an application under another Commonwealth law, or under a State law or a Territory law, and that the subject‑matter of the complaint has been, or is being, dealt with adequately under that law; or
(g) the act or practice could be made the subject of an application under another Commonwealth law, or under a State law or a Territory law, for a more appropriate remedy.
85ZZD Determinations of Information Commissioner
(1) After investigating a complaint, the Information Commissioner may:
(a) make a determination dismissing the complaint; or
(b) find the complaint substantiated and make a determination that includes one or more of the following:
(i) a declaration that the authority or person about whom the complaint was made has engaged in conduct unlawful under this Act and should not repeat or continue that conduct;
(ii) a declaration that the respondent should do any reasonable act or carry out any reasonable course of conduct to redress any loss or damage suffered by the complainant;
(iii) a declaration that the respondent should employ or re‑employ the complainant;
(iv) a declaration that the respondent should promote the complainant;
(v) a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered because of the act or practice about which the complaint was made;
(vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;
(vii) a declaration that it would be inappropriate for any further action to be taken in the matter.
(2) The Information Commissioner may require one or both parties to a complaint to attend such counselling as is specified by the Commissioner with a view to settling the matter to which the complaint relates.
(3) When making a determination, the Information Commissioner shall state any findings of fact upon which the determination is based.
(4) When making a determination, the Information Commissioner may declare that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred in connection with the making of the complaint and the investigation of the complaint.
(5) In paragraph (1)(b):
damage includes humiliation suffered by the complainant or injury to his or her feelings.
85ZZE Payment of compensation or expenses
Where a determination under paragraph 85ZZD(1)(b) includes a declaration of a kind referred to in subparagraph 85ZZD(1)(b)(v) or subsection 85ZZD(4), the declaration has effect as a declaration that the complainant is entitled to receive the specified amount:
(a) if the complaint was about an act or practice of a Commonwealth authority—from the Commonwealth;
(b) if the complaint was about an act or practice of a State authority—from that State; or
(c) in any other case—from the respondent.
85ZZF Enforcement of determination or recommendation
(1) The Information Commissioner or the complainant may apply to the Federal Court of Australia for an order to enforce a determination under paragraph 85ZZD(1)(b) or subsection 85ZZD(4).
(2) If the Federal Court of Australia is satisfied that the authority or person about whom the complaint was made has done anything that is a breach of Division 2 or 3 the court may make any orders it thinks fit (including a declaration of right).
(3) An order may give effect to a determination.
85ZZG Application of Privacy Act
(1) Sections 42 to 48 (inclusive) of the Privacy Act, and sections 50, 64 to 67 (inclusive) and 80W of that Act apply, with any necessary changes, in relation to a complaint as if the complaint had been made under subsection 36(1) of that Act.
Note: In addition, under subsection 80TB(1) of the Privacy Act 1988, the Commissioner has the power to monitor, under the Regulatory Powers Act, compliance with Divisions 2 and 3 of this Part.
(2) Where a provision of the Privacy Act is applied under subsection (1) or (2), a reference in that provision to an agency shall be read as a reference to a Commonwealth authority or a State authority, as the case requires.
Division 6—Exclusions
Subdivision A—Exclusions relating to work with children (Divisions 2 and 3)
85ZZGA Object of Subdivision
The object of this Subdivision is to help protect children from sexual, physical and emotional harm by permitting criminal history information to be disclosed and taken into account in assessing the suitability of persons for work with children.
85ZZGB Exclusion: disclosing information to a person or body
Divisions 2 and 3 do not apply in relation to the disclosure of information to a prescribed person or body if:
(a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to obtain and deal with information about persons who work, or seek to work, with children; and
(b) the disclosure is for the purpose of the person or body obtaining and dealing with such information in accordance with the prescribed law.
85ZZGC Exclusion: person or body taking information into account
Divisions 2 and 3 do not apply in relation to the taking into account of information by a prescribed person or body if:
(a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with children; and
(b) the taking into account is:
(i) for the purpose of dealing with such information in accordance with the prescribed law; or
(ii) required by or under a Commonwealth law, a State law or a Territory law.
85ZZGD Exclusion: person or body disclosing information
Divisions 2 and 3 do not apply in relation to the disclosure of information by a prescribed person or body if:
(a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with children; and
(b) the disclosure is required by or under a Commonwealth law, a State law or a Territory law.
85ZZGE Prescribed persons and bodies
Before the Governor‑General makes a regulation prescribing, for the purposes of section 85ZZGB, 85ZZGC or 85ZZGD, a person or body:
(a) to which information may be disclosed; or
(b) by which information may be taken into account or disclosed;
the Minister must be satisfied that the person or body:
(c) is required or permitted by or under a Commonwealth law, a State law or a Territory law to obtain and deal with information about persons who work, or seek to work, with children; and
(d) complies with applicable Commonwealth law, State law or Territory law relating to privacy, human rights and records management; and
(e) complies with the principles of natural justice; and
(f) has risk assessment frameworks and appropriately skilled staff to assess risks to children’s safety.
85ZZGF Definitions
In this Subdivision:
child means a person who is under 18.
work includes the following:
(a) work:
(i) under a contract of employment, contract of apprenticeship or contract for services; or
(ii) in a leadership role in a religious institution, as part of the duties of a religious vocation or in any other capacity for the purposes of a religious institution; or
(iii) as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership; or
(iv) as a volunteer, other than unpaid work engaged in for a private or domestic purpose; or
(v) as a self‑employed person;
(b) practical training as part of a course of education or vocational training;
(c) acting in a prescribed capacity or engaging in a prescribed activity.
85ZZGG Reviews of operation of this Subdivision
(1) The Minister must cause 2 reviews of the operation of this Subdivision to be conducted.
(2) The first review must:
(a) start not later than 30 June 2011; and
(b) be completed within 3 months.
(3) The 2nd review must:
(a) start not later than 30 June 2013; and
(b) be completed within 3 months.
(4) The Minister must cause a written report about each review to be prepared.
(5) The Minister must cause a copy of each report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
Subdivision AA—Exclusions relating to work with persons with disability (Divisions 2 and 3)
85ZZGH Object of Subdivision
The object of this Subdivision is to protect persons with disability from harm by permitting criminal history information to be disclosed and taken into account in assessing whether a person who works, or seeks to work, with a person with disability poses a risk to such a person.
85ZZGI Exclusion: disclosing information to a person or body
Divisions 2 and 3 do not apply in relation to the disclosure of information to a prescribed person or body if:
(a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to obtain and deal with information about persons who work, or seek to work, with a person with disability; and
(b) the disclosure is for the purpose of the person or body obtaining and dealing with such information in accordance with the prescribed law.
85ZZGJ Exclusion: person or body taking information into account
Divisions 2 and 3 do not apply in relation to the taking into account of information by a prescribed person or body if:
(a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with a person with disability; and
(b) the taking into account is:
(i) for the purpose of dealing with such information in accordance with the prescribed law; or
(ii) required by or under a Commonwealth law, a State law or a Territory law.
85ZZGK Exclusion: person or body disclosing information
Divisions 2 and 3 do not apply in relation to the disclosure of information by a prescribed person or body if:
(a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with a person with disability; and
(b) the disclosure is required by or under a Commonwealth law, a State law or a Territory law.
85ZZGL Prescribed persons and bodies
Before the Governor‑General makes a regulation prescribing, for the purposes of section 85ZZGI, 85ZZGJ or 85ZZGK, a person or body:
(a) to which information may be disclosed; or
(b) by which information may be taken into account or disclosed;
the Minister must be satisfied that the person or body:
(c) is required or permitted by or under a Commonwealth law, a State law or a Territory law to obtain and deal with information about persons who work, or seek to work, with a person with disability; and
(d) complies with applicable Commonwealth law, State law or Territory law relating to privacy, human rights and records management; and
(e) complies with the principles of natural justice; and
(f) has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of a person with disability.
85ZZGM Definitions
In this Subdivision:
person with disability means any of the following:
(a) a person who is a participant (within the meaning of the National Disability Insurance Scheme Act 2013);
(b) a person who is receiving supports or services of a kind mentioned in paragraph (b) of the definition of NDIS provider in section 9 of that Act;
(c) a person who is receiving supports or services of a kind prescribed by the regulations for the purposes of this paragraph.
work includes the following:
(a) work:
(i) under a contract of employment, contract of apprenticeship or contract for services; or
(ii) in a leadership role in a religious institution, as part of the duties of a religious vocation or in any other capacity for the purposes of a religious institution; or
(iii) as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership; or
(iv) as a volunteer, other than unpaid work engaged in for a private or domestic purpose; or
(v) as a self‑employed person;
(b) practical training as part of a course of education or vocational training;
(c) acting in a prescribed capacity or engaging in a prescribed activity.
85ZZGN Reviews of operation of this Subdivision
(1) The Minister must cause 2 reviews of the operation of this Subdivision to be conducted.
(2) The first review must be completed not later than 31 December 2019.
(3) The second review must be completed not later than 31 December 2022.
(4) The Minister must cause a written report about each review to be prepared.
(5) The Minister must cause a copy of each report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
Subdivision AB—Exclusions relating to work with individuals accessing funded aged care services
85ZZGO Object of Subdivision
The object of this Subdivision is to protect individuals accessing funded aged care services from harm by permitting criminal history information to be disclosed and taken into account in assessing whether a person who works, or seeks to work, with an individual accessing funded aged care services poses a risk to such an individual.
85ZZGP Exclusion: disclosing information to a person or body
Divisions 2 and 3 do not apply in relation to the disclosure of information to a prescribed person or body if:
(a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to obtain and deal with information about persons who work, or seek to work, with an individual accessing funded aged care services; and
(b) the disclosure is for the purpose of the person or body obtaining and dealing with such information in accordance with the prescribed law.
85ZZGQ Exclusion: person or body taking information into account
Divisions 2 and 3 do not apply in relation to the taking into account of information by a prescribed person or body if:
(a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with an individual accessing funded aged care services; and
(b) the taking into account is:
(i) for the purpose of dealing with such information in accordance with the prescribed law; or
(ii) required by or under a Commonwealth law, a State law or a Territory law.
85ZZGR Exclusion: person or body disclosing information
Divisions 2 and 3 do not apply in relation to the disclosure of information by a prescribed person or body if: