CTH Considers Bill to Introduce a New Government Data Sharing Scheme

Tuesday 15 December 2020 @ 3.01 p.m. | Legal Research

On 9 December 2020, Minister for Government Services Stuart Robert introduced the Data Availability and Transparency Bill 2020 (Cth) (“the Bill”) into the House of Representatives.

The Bill was introduced along with the Data Availability and Transparency (Consequential Amendments) Bill 2020 (Cth) (“the Amendment Bill”), which seeks to make consequential amendments to a number of acts in order to support the operation of the Bill if passed. The drafts of both the Bill and the Amendment Bill were released on for public comment on 14 September 2020, before submissions were closed on 6 November 2020. The draft of this Bill was discussed in an earlier TimeBase article.

The Bill has yet to pass the lower house.

The 2017 Productivity Commission Report

Both the Bill and the Amendment Bill are part of the Government response to the Productivity Commission Inquiry Report into Data Availability and Use (“the Inquiry”). In early 2016, the Productivity Commission was requested by the Government to undertake an inquiry into the benefits and costs of increasing the availability of and improving the use of public and private sector data by individuals and organisations. The Inquiry submitted its final report to the Government on 31 March 2017, and it was released to the public on 8 May 2017.

The Inquiry found that whilst there has been extraordinary growth in data generation and usability, frameworks for information and protections require reform. Additionally, lack of trust by both data holders and users in existing processes and protections create hurdles in the sharing and release of information. In order to tap into the opportunities of improved data access and use, the Inquiry recommended that there needed to be significant reforms to move towards a system of transparency and confidence, which treats data as an asset rather than a threat. A key theme of its recommendations is the creation of a data sharing structure that promotes a strong and clear culture towards better data use.

More recently, during the COVID-19 pandemic, data and digital services have been crucial to timely governmental response. The use of data to access government services online in a timely and reliable manner has highlighted the need for a more seamless way that the public can approach future government services.

Amendments under the Bill

The Bill seeks to introduce a new data sharing scheme for federal government data that is both protected and simplified to ensure safety of data and ease of management. The scheme proposed under the Bill seeks to provide controlled access to data to certain people and organisations. Authorisation to share government data under the scheme will be for three permitted purposes:

  1. Delivery of government services
  2. Information for government policy and programs
  3. Research and development

The Bill also proposes the establishment of an independent regulator, the National Data Commissioner (“the Commissioner”), who will oversee the security and transparency of the scheme. The Commissioner will be supported by a National Data Advisory Council which will give advice on ethical data use and technical issues. The Commissioner will also be publishing data codes and binding codes of practice in future, to ensure the smooth ongoing operation of the scheme.

The Commissioner will also be responsible for the accreditation process, which will allow users and service providers to request and access data through the scheme. This process will allow the Commissioner to ensure that users have the right skills and resources to handle the data to a set safety and security standard prior to entering the scheme.

As one of the safeguards proposed under the Bill, the scheme will be operated following a set of data sharing principles, which is a risk management framework based on the international recognised Five Safes framework. The Five Safes framework is an approach to thinking about, assessing and managing risks that are associated with data sharing and release. It considers the strategic, privacy, security, ethical, and operational risks as part of its holistic assessment.

If a data custodian accepts a data sharing request, the arrangement must be formalised with the accredited user in a data sharing agreement. This agreement will contain the terms and conditions of a data sharing project, and must state how the benefits will be delivered, as well as how risks will be mitigated. The Commissioner must publish these agreements on a public register in order to ensure ongoing transparency and accountability and to promote trust in government data handling.

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Data Availability and Transparency Bill 2020 (Cth) and supporting documents available on TimeBase’s LawOne service

Data Availability and Transparency (Consequential Amendments) Bill 2020 (Cth) and supporting documents available on TimeBase’s LawOne service

Data Availability and Use (Productivity Commission)

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