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EDR scheme recognition guidelines consultation information

This consultation closed on 30 August 2013.

The Office of the Australian Information Commissioner (OAIC) is seeking comment on draft Guidelines for recognising external dispute resolution (EDR) schemes under s 35A of the Privacy Act 1988.

Background

In November 2012 the Australian Parliament passed the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (the Privacy Amendment Act) to amend the Privacy Act 1988 (the Privacy Act). The amendments are due to commence on 12 March 2014. The amendments give the Australian Information Commissioner (Information Commissioner) the discretion to recognise External Dispute Resolution schemes to handle privacy-related complaints (s35A). The Privacy Act also gives the Information Commissioner the discretion to decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made, or which the Information Commissioner has accepted, if the Information Commissioner is satisfied that the act or practice:

  • is being dealt with by a recognised EDR scheme, or
  • would be more effectively or appropriately dealt with by a recognised EDR scheme.

Additionally, a credit provider must be a member of a recognised EDR scheme to be able to participate in the credit reporting system.

The OAIC has drafted Guidelines to provide guidance to existing EDR schemes, or entities looking to form a new EDR scheme, on how the Commissioner will recognise EDR schemes and the steps EDR schemes should take to apply for recognition. The Guidelines reflect the process and powers of the Commissioner to recognise EDR schemes under s 35A of the amendments and the matters the Commissioner must take into account in considering whether to recognise an EDR scheme. The Guidelines provide general guidance on:

  • the factors the Commissioner will consider when assessing the matters that must be taken into account in considering whether to recognise an EDR scheme
  • the conditions the Commissioner may impose on an EDR scheme’s recognition
  • the Commissioner’s process for recognising EDR schemes
  • how the Commissioner may vary or revoke an EDR scheme’s recognition.

In the Guidelines, unless otherwise indicated legislative references are to the Privacy Act as amended by the Privacy Amendment Act.

Purpose of consultation

The Commissioner has the power to issues Guidelines prior to commencement of the Privacy Amendment Act. The Commissioner is developing the Guidelines prior to 12 March 2014 so that entities considering applying to have an EDR scheme recognised under s35A have an opportunity to consider the Guidelines and prepare and lodge an application for recognition prior to commencement.

Although the guide is aimed at entities and EDR schemes that are interested in preparing an application for recognition, the OAIC welcomes comments by other interested stakeholders and members of the community.

Submissions can be made by email to consultation@oaic.gov.au or by post to GPO Box 5218 Sydney NSW 2001. Electronic lodgement of submissions is preferred. The closing date for comment is Friday 30 August 2013.

Note: The OAIC intends to make all submissions publicly available. Please indicate when making your submission if your submission contains confidential information which you do not wish to make public. Requests for access to confidential comments will be determined in accordance with the Freedom of Information Act 1982 (Cth).

To assist the OAIC to meet its obligations with respect to accessibility requirements, we request that emailed submissions be made in HTML, Rich Text Format (.rtf) or Microsoft Word (.doc or .docx) format.

Privacy collection statement

The OAIC will only use the personal information it collects during this consultation for the purpose of revising and finalising the guide.