Consent removed from Australia's proposed data-sharing legislation

The National Data Commissioner won't be able to prevent data from being shared, rather they are tasked with capabilities to 'encourage' data custodians and accredited users to 'safely and respectfully share personal information'.
Written by Asha Barbaschow, Contributor

The Australian government has released a discussion paper on Australia's Data Sharing and Release Legislative Reforms, tweaking what it proposed last year by removing a fundamental element of privacy -- consent.

The paper [PDF] proposes the Data Sharing and Release legislation not require consent for the sharing of personal information.

"Instead, we are placing the responsibility on Data Custodians and Accredited Users to safely and respectfully share personal information where reasonably required for a legitimate objective," it says.

The paper says that following feedback, the government has "nuanced" its position on consent.

"While consent is important in certain situations, the societal outcomes of fair and unbiased government policy, research, and programs can outweigh the benefits of consent, provided privacy is protected," it says. "The Office of the National Data Commissioner will encourage the use of consent where appropriate when applying the Data Sharing Principles, although the legislation will not require it in all circumstances."

According to the government, requiring consent for all data sharing will lead to biased data that delivers the wrong outcomes.

"The Data Sharing and Release legislation is about improving government policy and research by helping government and researchers use a better evidence base. If we required consent, then data would only be shared where consent was given," the paper says.

"This will skew the data which is shared, leaving it unfit for many important purposes in the public benefit; it also runs the risk of leading to flawed policy and research which impacts negatively on society."

This decision to not include consent comes despite the paper saying that many involved in the process supported efforts to progress the public conversation around consent.

The Data Sharing and Release framework has been touted by the government as setting a new direction for how public sector data in Australia is used and reused.

"The Data Sharing and Release legislation will provide legal grounds to empower the government to share public sector data for specified purposes with the right safeguards," the paper says.

See also: ACT Policing had an unauthorised metadata access party 3249 more times in 2015

The framework is underpinned by the appointment of an independent National Data Commissioner tasked with "driving change and supporting best practice sharing and release of public sector data"; a National Data Advisory Council advising the Commissioner on ethical data use, community engagement, technical best practice, as well as industry and international developments; and new legislation to authorise a data sharing system and modernise Australia's public sector data framework.

"We can and will do more for improving people's experience when dealing with government -- and data plays an important role in achieving this goal," Minister for Government Services Stuart Robert said in the paper's foreword.

The government currently shares public sector data through various laws and mechanisms developed at various points in time, with little consistency or a single point of oversight. The government expects the Data Sharing and Release framework will provide an alternative pathway for government agencies who want to share data.

According to the paper, data sharing must satisfy the purpose test -- this means that data can only be shared when it is reasonably necessary to inform government policy, programs, or service delivery, or be in support of research and development.

It also says that safeguards, through the five Data Sharing Principles, must be applied to holistically minimise and mitigate the risks of the data sharing, by determining the specific controls to be applied.


Five Data Sharing Principles 

Details must also be recorded in a Data Sharing Agreement to be published for greater transparency of public sector data sharing.

The Productivity Commission was in 2016 asked to look at how data was used across the Australian economy. It found Australia's use of data was falling behind other countries and recommended data reforms to unlock the full potential of public sector data.

Read more: Researchers label Australian data-sharing legislation a 'significant misalignment'

Public comments on an Issues Paper outlining the proposed Data Sharing and Release legislation was then opened 18 months later.

Shortly after, the Office of the National Data Commissioner was established within the Department of the Prime Minister and Cabinet, tasked with improving data sharing and use across the Australian public sector. The interim National Data Commissioner, Deborah Anton, was then appointed.

In response to the Issues Paper, researchers from the University of Melbourne in September called the data-sharing legislation a "significant misalignment", concerned that by not acknowledging and protecting the fundamental right to privacy of individuals, there will be little chance of establishing trust in the use of public data.

The researchers also touched on consent in their submission.

"'Consent' does not make one appearance in the proposal, while being a central tenet to privacy best practice, is indicative of significant misalignment," they wrote.

Responding to issues brought up by the research sector like those, the Discussion Paper said such issues "remain serious concerns we must approach cautiously".

In response to concerns about overriding all secrecy provisions, the Data Sharing and Release legislation will not compel sharing, rather government agencies will be responsible for deciding whether to use the legislation -- only if they are satisfied data can be shared safely, however.

Must read: Public Transport Victoria in breach of Privacy Act after re-identifiable data on over 15m myki cards released

Also changed since the Issues Paper, it has been decided that data sharing for compliance and assurance purposes will not be allowed under the Data Sharing and Release legislation.

The recent Discussion Paper asks for submissions in response to a total of 14 questions, such as if the safeguards address key privacy risks, do the purposes for sharing data meet expectations, what the challenges for open release of public sector data are, and what is thought of the name "Data Sharing and Release Act".

Submissions close October 15 and the government said it will use responses to undertake another round of engagement.

It expects to introduce legislation into Parliament in mid-2020.


Editorial standards