Policy position on consultation for external facing guidance

This policy aims to outline how the Office of the Australian Information Commissioner (OAIC) engages with external stakeholders when developing externally facing guidance products.

The OAIC applies a risk‑based and purpose‑driven approach to decide when external consultation is appropriate for external facing guidance. When appropriate, the OAIC aims to consult with stakeholders and the community to identify key issues, perspectives or gaps collaboratively, and inform the effective design and development of targeted fit-for purpose guidance in line with the OAIC’s guiding principles of being proactive, proportionate, purpose driven and people focused.

When we consult

The OAIC will conduct sound external consultation when:

• there is a statutory obligation to consult publicly
• there are obligations arising under relevant legislation to consult with third parties
• significant changes are being made to guidance that agencies or organisations are required to have regard to under legislation.

For example, the OAIC will generally consult on the following types of guidance:

• Freedom of Information Guidelines
• My Health Records Guidelines
• CDR Privacy Safeguard Guidelines
• Codes of Practice.

The OAIC may conduct external consultation when:

• stakeholder perspectives or the views of the community are necessary to understand key issues, perspective or gaps, particularly around guidance implementation
• stakeholder perspectives are sought to understand the needs of regulated entities, to help ensure guidance is impactful, as well as understand the regulatory burden of any new OAIC advice. For example, to inform implementation timeframes.
• there is a need to engage stakeholder expertise (including from industry on how OAIC’s advice would operate in practice, or from government agencies where topics relate to issues across jurisdictional issues).

The OAIC may not conduct external consultation when:

• the matter is operational or administrative, such as minor amendments or updates that do not materially affect the guidance’s interpretation of the law. For example, an update to third party entity names.
• timing or urgency prevents consultation, for example, where immediate regulatory action is required to mitigate harm or address a serious risk.
• the issue is governed by settled law or precedent, and consultation would not alter established interpretation. For example, following a court decision.
• meaningful consultation has already occurred and the OAIC is implementing previously consulted or clearly supported positions.
• the guidance is a statement of the OAIC’s regulatory posture.

How we consult

How the OAIC consults depends on the above factors. Consultation can be undertaken through:

• public consultation – this is facilitated via our public-facing consultation webpage and promoted though OAIC promotional channels. Can also include targeted consultation sent directly to unique stakeholders.
• targeted consultation – this is organised with unique stakeholders, or cohorts as required. This may include relevant Australian Government Agencies, Peak bodies and Associations, working groups or community of practice groups.

Timing of consultation

The timing of our consultation will depend what is proportionate in the circumstance, with regard to any statutory timeframes, the complexity of the issues, number of consultation questions, likely availability of stakeholders and the burden that the consultation may place on them. Public consultation should generally be open for 30 working days.

Accessibility of consultation

We aim to ensure our guidance consultation products are clear, simple and accessible for their primary target audience. Where we are engaging with specific or specialist groups, we will take reasonable steps to tailor our materials to reflect their needs, using language, formats and presentation that are easy to understand and appropriate for the audience.

For example, when consulting on the development of the Children’s Online Privacy Code, we sought the views of children, young people, parents and carers. To support meaningful participation, we developed targeted consultation material that used age-appropriate language, imagery and format to explain key concepts and help the audience understand the issues and respond to our consultation questions.

Accessibility is important to us and if the documents are not in a format that can be accessed or not clear, see our accessibility page about how to contact us about the format and for accessibility tips when using our website.

Confidentiality of consultation

Submissions gathered by consultees during either public or targeted consultations will generally be made public, unless agreed otherwise with the OAIC for specific reason.

If a consultee does not wish for a submission to be made public, the consultee should indicate to the OAIC that the submission contains confidential information and set out the reasons it should not be published. If the OAIC accepts the submission in confidence, the consultee must then provide an ‘open’ version of the submission that the OAIC may publish. That open submission must explain that the consultee has provided a confidential version of the submission to the OAIC.

The consultee should also be aware that if the OAIC receives an FOI request for the confidential submission, the OAIC will determine the FOI request in accordance with the FOI Act.

For public consultation we will publish submissions on the relevant consultation webpage shortly after consultation closes.

How we handle personal information

The OAIC may collect your contact details and other personal information, where relevant, if you are participating consultation activities.

We will also publish your submission, or an ‘open’ version of your submission if you indicate that you wish for parts of your submission to remain confidential.

To find out more about our privacy policy visit Privacy policy.