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MOU — Australian Capital Territory and OAIC — Provision of Privacy Services

Date 11 July 2018
Parties

Australian Capital Territory

Office of the Australian Information Commissioner

Provision of Privacy Services

Prepared by

ACT Justice and Community Services Directorate
Level 4 12 Moore St
Canberra City 2601
Australian Capital Territory
Ph:      (02) 6207 8303
Fax:    (02) 6205 0937

Version D28032018

Parties:

Australian Capital Territory, the body politic established by section 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cwlth) (Territory) represented by the Justice and Community Safety Directorate.

Office of the Australian Information Commissioner ABN 85 249 230 937, established by the Australian Information Commissioner Act 2010 (the AIC Act) (Commissioner).


Background

  1. This MOU describes the understanding between the Territory and the Office of the Australian Information Commissioner about the provision of privacy services in accordance with the Information Privacy Act 2014.
  2. Section 28 of the Information Privacy Act provides for the ACT Attorney‑General to enter into arrangements with the Commissioner to perform certain responsibilities and functions in respect of ACT agencies.

It is agreed by the parties as follows.

1. Interpretation

1.1 Definitions

The following definitions apply in this MOU, unless the context otherwise requires.

TermDefinition

Agreed Services

means the services specified in Item 1Schedule 1 of this memorandum of understanding.

Directorate

means the ACT Justice and Community Safety Directorate.

Director-General

means the Director-General of the Directorate.

Information Privacy Act

means the Information Privacy Act 2014 (ACT).

MOU

means this memorandum of understanding.

Privacy Act

means the Privacy Act 1988 (Cwlth).

Representatives

means, in relation to each party, the representatives whose contact details are specified in Item 2 Schedule 1, or as notified in writing from time to time by one party to the other.

Term

means the term specified in Item 3 Schedule 1, and if extended, the initial term and the extended term.

Territory

means:

  1. when used in a geographical sense, the Australian Capital Territory; and
  2. when used in any other sense, the body politic established by section 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cwlth).

1.2 General

In this MOU, unless the context otherwise requires:

  1. references to “the Commissioner” means the Australian Information Commissioner, Acting Australian Information Commissioner or, where the context so admits, the employees, and authorised agents or subcontractors of the Australian Information Commissioner;
  2. references to legislation or to provisions in legislation include references to amendments or re-enactments of them and to all regulations and instruments issued under the legislation;
  3. words importing a gender include the others; words in the singular number include the plural and vice versa; and where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
  4. “include” is not to be construed as a word of limitation; and
  5. headings have no effect on the interpretation of the provisions.

1.3 Schedule takes precedence

To the extent of any conflict, the obligations in any part of Item 1 Schedule 1, take precedence over the obligations expressed in this MOU.

2. MOU

2.1 Intention

This MOU is a statement of intent and does not create legal obligations between the parties.

2.2 Variation

This MOU may be varied or the Term extended only by the written agreement of the parties prior to the expiration of this MOU.

3. Term

3.1 Duration

This MOU is for the period referred to in Item 3 Schedule 1, unless terminated under the provisions of this MOU.

3.2 Review

This MOU will be subject to review by the ACT after 2.5 years of operation.

3.3 Termination

If, prior to the expiration of the period referred to in Item 3 Schedule 1, a party wishes to terminate the arrangements, or part of the arrangements, set out in this MOU, it will provide the other party with written notice at least six months in advance of the date on which the termination is to take effect.

3.4 Notice of non-renewal

If a party does not intend to seek renewal of the arrangements set out in this MOU, upon the expiration of the period referred to in Item 3 Schedule 1, it will give written notice to the other party of that fact, at least six months prior to the expiration of that period.

3.5 Appointment of ACT Privacy Commissioner

Payment for services provided by the Commissioner to the ACT will cease on the appointment of a Privacy Commissioner under section 26 of the Information Privacy Act, subject to pro rata payment for any period during which the Commissioner has provided services under this MOU and for which the Commissioner has not been paid.

4. Responsibilities

The Commissioner and the Director-General commit to the following principles:

  1. Subject to any legislative requirements, the Commissioner undertakes to advise and discuss with the Director-General any issue relating to ACT Government agencies that the Commissioner considers to be potentially publicly sensitive in relation to the functions of the Commissioner.
  2. The Commissioner and the ACT will endeavour to conduct their relationship in a manner that:
    1. promotes a mutually professional relationship;
    2. facilitates the exchange of analytical information which assists the ACT and the Commissioner to deliver improved privacy services to the ACT community;
    3. encourages regular discussions between them; and
    4. enables them to fulfil their obligations at law and under this MOU.

5. Costs and Payment

5.1 Payment for 2018-19

The liability of the ACT to the Commissioner for the provision of privacy services for this MOU will be $177,500.00 per financial year.

5.2 Payments not subject to GST

Payments under this MOU are not subject to GST as the amounts charged do not exceed the actual or anticipated cost of providing the Agreed Services and reflect the parties’ understanding that this is a non-commercial arrangement.

5.3 Payment by half-yearly instalments

Payments due under this MOU will be made in two equal (or as near to equal as practicable) half-yearly instalments payable by the Territory within 30 days of receipt of an invoice.

5.4 Timing of invoices

The Commissioner may render an invoice on or after 1 July and 1 January in each year of this agreement.

6. Agreed Services

The Agreed Services are set out at Schedule 1 to this MOU. Any variation to the Agreed Services, or any change in the priority to be given to the Agreed Services, will be on terms agreed to by the Commissioner and the Director­ General. The Agreed Services do not limit in any way the Commissioner's functions as outlined in section 27 of the Privacy Act.

7. Reporting Requirements

7.1 Annual report

The Commissioner will, as soon as possible but not later than 31 July each year, provide to the ACT Attorney General an annual report for each of the financial years ending 30 June 2019, 30 June 2020 and 30 June 2021.

7.2 Form of annual report

The Commissioner will provide the annual report in a form suitable to be tabled in the ACT Legislative Assembly under section 54 of the Information Privacy Act.

7.3 Contents of annual report

The annual report must include:

  1. The number of:
    1. complaints open as at 1 July;
    2. complaints received;
    3. complaints closed;
    4. complaints open as at 30 June;
    5. complaints that resulted in a report to the Minister under section 43 of the Information Privacy Act;
    6. complaints about which the Commissioner has given a notice under section 45 of the Information Privacy Act;
    7. assessments finalised;
    8. written and telephone enquiries about ACT agencies, including a summary of issues raised.
  2. For each complaint received, a summary of issues raised and outcomes.
  3. For each finalised assessment, a summary of the outcome.
  4. Information about any complaints that have not yet been finalised.
  5. Details of formal reports and recommendations made to ACT agencies as a result of complaints or other investigations.
  6. Any other information about the management of complaints or significant issues, including an analysis of systemic issues and common themes that have come to the Commissioner's attention during the year.

7.4 Annual report must not identify complainant

The annual report must identify each privacy complaint’s respondent, but must not include a complainant’s personal information.

8. Other

8.1 Privacy Clearinghouse

The Director-General agrees to maintain a clearinghouse arrangement within the Directorate for all privacy matters affecting ACT public sector agencies (“the Privacy Clearinghouse”).

8.2 Requests for advice, assessments or investigations

The Director-General agrees to request that ACT agencies put in place procedures under which all requests to the Commissioner for advice on complaints, assessments or investigations are referred by the Privacy Clearinghouse.

8.3 Complaints

The Commissioner must accept and deal with privacy complaints according to Part 6 of the Information Privacy Act.

8.4 Notice of complaints

The Commissioner agrees to notify the Privacy Clearinghouse and the head of the relevant agency as soon as practicable after receiving a complaint about an agency or part of the agency.

8.5 Progress of complaints

The Commissioner agrees to update the Privacy Clearinghouse in writing as soon as practicable when a complaint about an agency under the Information Privacy Act is resolved, refused or referred and provide reasons for that outcome.

8.6 Provision of draft legislation to Commissioner for comment

ACT agencies:

  1. may, through the Privacy Clearinghouse, provide the Commissioner for comment copies of draft legislation, legislative instruments and policy documents it has developed that may impact the privacy of ACT citizens; and
  2. will endeavour to allow the Commissioner a sufficient period of time in which to assess and comment on the draft legislation, legislative instrument or policy document.

9. Dispute Resolution

If a difference or dispute (Dispute) arises in relation to this MOU, the parties agree to resolve the Dispute by negotiations, including by referring the Dispute to persons who have authority to intervene and direct some form of resolution.

10. Notices

Any notice, including any other communication, required to be given or sent to either party under this MOU must be in writing and given to the relevant Representative. A notice will be deemed to have been given:

  1. if delivered by hand, on delivery;
  2. if sent by prepaid mail, on the expiration of two business days after the date on which it was sent;
  3. if sent by facsimile, on the sender’s facsimile machine recording that the facsimile has been successfully and properly transmitted to the recipient’s address; or
  4. if sent by electronic mail, on the other party’s acknowledgment of receipt by any means.

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Schedule 1

Item 1. Agreed Services

Complaints and enquiries

Respond to complaints or enquiries.

Note: if the number of complaints or enquiries exceeds historical levels, the parties may agree to negotiate the terms of the MOU, including the amounts payable and the services purchased.

Assessments

One assessment per year for the Term of the MOU.

Privacy Professional Network

Access to Privacy Professional Network meetings.

Guidance

The Commissioner will review and update the Commissioner’s website content and guidance material in relation to the Information Privacy Act.

In the case of requests from the Directorate for more comprehensive or complex guidance which the Commissioner considers exceeds resources available under this MOU, the Commissioner will provide an estimate of the cost of developing the guidance and the likely timeframe before the work is undertaken.

Reporting

One annual report for each year of the Term of the MOU about its operation in a form that can be tabled in the Legislative Assembly (s 54 report).

Data Breach Notifications

Where ACT agencies notify the Commissioner of a data breach, the Commissioner will register the breach and provide further advice. Provision of advice or further services will be at the Commissioner’s discretion.

Policy and Legislation Advice

Includes limited advice to agencies, scrutiny of Bills, appearances before the ACT Legislative Assembly at Estimates Committees and advice to Members of the ACT Legislative Assembly.

In the case of requests from agencies for more comprehensive advice and/or detailed scrutiny of Bills which the Commissioner considers exceed resources available under this MOU, the Commissioner will provide an estimate of the cost of providing the advice/scrutiny and the likely timeframe before the work is undertaken.

Item 2. Representatives

For the Territory:

The ACT Privacy Clearinghouse
Legislation, Policy and Programs Branch
Justice and Community Safety Directorate
Email: [redacted]

For the Commissioner:

Sarah Ghali
Director, Regulation and Strategy Branch
Phone: [redacted]
Email: [redacted]

Item 3. Term

From the date of this MOU until 30 June 2021.

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Date of this MOU: 11 July 2018

Signed for and on behalf of the Australian Capital Territory: Alison Playford
In the presence of: Chris Bartram

Signed by or for and on behalf of the Acting Office of the Australian Information Commissioner: Angelene Falk
In the presence of: Brenton Attard

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