COVID-19 stalls Australia's Data Availability and Transparency Act

The Australian government was hoping to introduce the Data Availability and Transparency Act (DATA) by 30 June 2020 as part of its commitment to establish stronger safeguards around the sharing of data across government. However, due to the COVID-19 pandemic affecting its timeline, consultation on an exposure draft of the Bill, scheduled for the first half of 2020, will no longer be going ahead.

While waiting to provide advice on updated timeframes, the Office of the National Data Commissioner has released a draft data sharing agreement template that aims to help agencies share data in a way that is "safe, timely, and transparent".

Interim National Data Commissioner Deborah Anton said the template is "legislation agnostic", meaning it could be used for general purposes and is not tied to the forthcoming DATA legislation.

"Agencies may need to modify some aspects to suit their specific needs," she said.

The draft template is based on the National Data Commissioner's Best Practice Guide to Applying the Data Sharing Principles and draws on existing agreements.

Feedback received from the template would be used to improve the agreement, with Anton saying it would also be used to help design the data sharing agreement template, which is required alongside the legislation.

The government initially announced its intentions to introduce DATA in May 2018 as part of its response to the Productivity Commission Data Availability and Use report.

At the time, the Australian government said it would commit AU$65 million to "reform" the Australian data system and said the DATA would be used to stand up the accredited data authorities and legislate framework for sharing the datasets.

"The legislative package will set clear rules and expectations for data sharing and release, including making clear when data can be shared, and embedding strong safeguards for sensitive data and effective risk management practices," the government said.

It is expected that the new legislation will provide government agencies, acting as data custodians, with an alternative authorisation for sharing public sector data with accredited entities such as government agencies, state and territory authorities, and non-government entities such as universities.

It said it would take a "principles-based approach" to safeguarding the sharing of public sector data; empower the National Data Commissioner to develop requirements and guidance to support government agencies and data sharing entities; and establish clear governance arrangements, including enforcement and accountability mechanisms.

The initial focus of the legislation will be on sharing of Commonwealth data. However, the legislation will allow for participation by state and territory agencies, with the aim of moving "towards a consistent national data system over time".

In a discussion paper on Australia's Data Sharing and Release Legislative Reforms in September, the federal government tweaked what it proposed the year prior by removing a fundamental element of privacy -- consent.

It proposed that 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," the discussion paper said.

The paper said that following feedback, the government has since "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 continued. 

"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 government, requiring consent for all data sharing would 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 said.

"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.

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