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This Act is the Data Availability and Transparency Act 2022.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
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Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this Act | The day after this Act receives the Royal Assent. | 1 April 2022 |
This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
The objects of this Act are to:
serve the public interest by promoting better availability of public sector data; and
enable the sharing of public sector data consistently with the Privacy Act 1988 and appropriate security safeguards; and
enhance integrity and transparency in sharing public sector data; and
build confidence in the use of public sector data; and
establish institutional arrangements for sharing public sector data.
This Act establishes a data sharing scheme under which Commonwealth bodies are authorised to share their public sector data with accredited users, and accredited users are authorised to collect and use the data, in a controlled way.
The sharing, collection and use of data must be part of a project that is for one or more of the defined data sharing purposes, and must be done consistently with the data sharing principles and under a registered data sharing agreement that meets the requirements of this Act. Privacy protections apply to the sharing of personal information.
Data may be shared directly with an accredited user, or through an intermediary accredited for the purpose (called an ADSP, short for accredited data service provider).
The National Data Commissioner is the regulator of the data sharing scheme and also has the function of providing education and support in relation to handling public sector data.
The Commissioner’s regulatory functions include accrediting ADSPs and users other than Commonwealth, State and Territory bodies. The Minister has the function of accrediting such bodies as users.
The Commissioner also has functions relating to handling complaints and powers to require information and to assess, monitor and investigate data scheme entities.
Data scheme entities have responsibilities under the Act. A range of enforcement options are available to the Commissioner.
This Act mainly relies for its constitutional basis on the matters set out in subsection 13(4) (constitutional requirements for authorisation for data custodian to share public sector data) (but see also subsections 42(2) and 61(2)).
This Act binds the Crown in each of its capacities.
However, this Act does not make the Crown liable to be prosecuted for an offence.
To avoid doubt, subsection (2) does not prevent the Crown from being liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act.
This Act and the Regulatory Powers Act as it applies in relation to this Act extend to every external Territory.
This Act, and the Regulatory Powers Act as it applies in relation to this Act, extend to acts, omissions, matters and things outside Australia.
Geographical jurisdiction for civil penalty provisions and offences is dealt with in section 136.
This Act, and the Regulatory Powers Act as it applies in relation to this Act, have effect in relation to acts, omissions, matters and things outside Australia subject to:
the obligations of Australia under international law, including obligations under any international agreement binding on Australia; and
any law of the Commonwealth giving effect to such an agreement.
In this Act:
access has a meaning affected by section 10.
accreditation authority means:
for an entity applying for accreditation, or accredited, as an ADSP—the Commissioner; or
for a Commonwealth body, State body or Territory body, or the Commonwealth or a State or Territory, applying for accreditation, or accredited, as an accredited user—the Minister; or
for another entity applying for accreditation, or accredited, as an accredited user—the Commissioner.
accredited entity: see subsection 11(4).
accredited user: see subsection 11(4).
ADSP: see subsection 11(4).
ADSP‑controlled access: see subsection 16B(6).
ADSP‑enhanced data: see subsection 11A(3).
adverse or qualified security assessment means an adverse security assessment, or a qualified security assessment, within the meaning of Part IV of the Australian Security Intelligence Organisation Act 1979.
ancillary contravention of a civil penalty provision means a contravention that arises out of the operation of section 92 of the Regulatory Powers Act.
ancillary offence has the same meaning as in the Criminal Code.
APP entity has the same meaning as in the Privacy Act 1988.
APP‑equivalence term: see subsection 16E(2).
appointed member: see paragraph 62(1)(e).
approved contract: see subsection 123(3).
approved form for a provision of this Act, the rules or a data code means a form approved by the Commissioner for the purposes of the provision under section 132.
Australia, when used in a geographical sense, includes the external Territories.
Australian aircraft has the same meaning as in the Criminal Code.
Australian entity means an entity that is any of the following:
a Commonwealth body, a State body or a Territory body;
the Commonwealth, a State or a Territory;
an Australian university.
Australian ship has the same meaning as in the Criminal Code.
Australian university means a registered higher education provider:
that, for the purposes of the Tertiary Education Quality and Standards Agency Act 2011, is registered in the “Australian University” provider category; and
that is established by or under a law of the Commonwealth, a State or a Territory.
authorised officer: see section 137.
biometric data:
means personal information about any measurable biological or behavioural characteristic relating to an individual that could be used to identify the individual or verify the individual’s identity; and
includes a biometric template containing representations of information mentioned in paragraph (a).
Data that is not personal information cannot be biometric data. For example, an eye colour, by itself, is not biometric data.
breach: a data scheme entity breaches this Act if the data scheme entity engages in conduct that contravenes, or is inconsistent with, this Act.
Circuit Court means the Federal Circuit and Family Court of Australia (Division 2).
civil penalty provision has the same meaning as in the Regulatory Powers Act.
Commissioner means the National Data Commissioner referred to in section 41.
Commonwealth body:
means:
a Commonwealth entity, or a Commonwealth company, within the meaning of the Public Governance, Performance and Accountability Act 2013; or
any other person or body that is an agency within the meaning of the Freedom of Information Act 1982; but
does not include an Australian university.
complex data integration service: see subsection 16D(3).
condition of accreditation means a condition:
prescribed by the rules for the purposes of subsection 77B(1); or
imposed under section 74, 78 or 84.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
Council means the National Data Advisory Council established by section 61.
court/tribunal order means an order, direction or other instrument made by:
a court; or
a judge (including a judge acting in a personal capacity) or a person acting as a judge; or
a magistrate (including a magistrate acting in a personal capacity) or a person acting as a magistrate; or
any other person or body that has the power to act judicially under a law of the Commonwealth or a State or Territory; or
a tribunal; or
a member or an officer of a tribunal;
and includes an order, direction or other instrument that is of an interim or interlocutory nature.
data means any information in a form capable of being communicated, analysed or processed (whether by an individual or by computer or other automated means).
data breach: see section 35.
data code: see subsection 126(1).
data custodian: see subsection 11(2).
data scheme entity: see subsection 11(1).
data service means any operation performed on or in relation to data, at any stage from collection or creation to destruction.
data sharing agreement: see section 18.
data sharing purpose: see subsection 15(1).
data sharing scheme means this Act and the regulations, rules, data codes and guidelines made under it.
Defence Department means the Department administered by the Minister administering the Defence Act 1903.
de‑identification data service: see subsection 16C(3).
de‑identified has the same meaning as in the Privacy Act 1988.
delivery of government services: see subsection 15(1A).
designated individual: see section 123.
designation: see section 123.
electronic communication means a communication of information in any form by means of guided electromagnetic energy, unguided electromagnetic energy or both.
enforcement related purpose: see subsection 15(3).
engage in conduct means:
do an act; or
omit to do an act.
entity means any of the following:
a Commonwealth body, a State body or a Territory body;
a body politic;
an Australian university;
a body corporate;
an individual.
excluded entity: see subsection 11(3).
exit: see section 20E.
Federal Court means the Federal Court of Australia.
final output of a project means the output specified as the agreed final output in the data sharing agreement for the project (see paragraph 19(3)(b)).
government entity: see subsection 125A(4).
guidelines means guidelines made under section 127.
offence against this Act includes an offence against section 6 of the Crimes Act 1914, or Chapter 7 of the Criminal Code, that relates to this Act.
Ancillary offences that relate to this Act are also offences against this Act (see section 11.6 of the Criminal Code).
operational data means:
data about information sources or operational activities or methods available to an agency mentioned in paragraph 17(2)(b); or
data about particular operations that have been, are being or are proposed to be undertaken by such an agency, or about proceedings relating to those operations.
output: see subsection 11A(1).
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
personal information has the same meaning as in the Privacy Act 1988.
Information that has been de‑identified is no longer personal information.
point: see subsection 136(9).
precluded purpose: see subsections 15(2) and (4).
primary contravention of a civil penalty provision means a contravention that does not arise out of the operation of section 92 of the Regulatory Powers Act.
primary offence has the same meaning as in the Criminal Code.
project: see section 11A.
public sector data means data lawfully collected, created or held by or on behalf of a Commonwealth body, and includes ADSP‑enhanced data.
registered: a data sharing agreement is registered if the agreement is included in the register of data sharing agreements under subsection 130(4).
regulatory function means a function set out in subsection 45(1).
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
release: see subsection 10(1).
reviewable decision: see section 118.
reviewer: see section 118.
rules means rules made under subsection 133(1).
scheme data means:
any copy of data created for the purpose of being shared under section 13 as part of a project and held by the entity that is the sharer mentioned in that section, whether or not the data has yet been shared; or
output of a project, other than a copy that has exited the data sharing scheme (see section 20E); or
ADSP‑enhanced data of a project, other than a copy that has exited the data sharing scheme (see section 20E).
secure access data service: see subsection 16C(4).
security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
share: see subsection 10(2).
source data: see paragraph 19(3)(a).
State body means any of the following, but does not include an Australian university:
a department of a State;
a body established for a public purpose by or under a law of a State, other than a body prescribed by the rules;
the holder of a statutory office appointed under a law of a State, other than an office prescribed by the rules.
submit: see subsection 20A(3).
Territory body means any of the following, but does not include an Australian university:
a department of a Territory;
a body established for a public purpose by or under a law of a Territory, other than a body prescribed by the rules;
the holder of a statutory office appointed under a law of a Territory, other than an office prescribed by the rules.
use includes handle, store and provide access.
Examples of use of data by an accredited user include developing and modifying output.
For the purposes of this Act, a reference to an entity providing access to data includes a reference to the entity:
providing another entity with access to the data; and
providing open access to the data (releasing the data).
This Act uses the expression share to refer to data custodians of public sector data providing accredited entities with access to data under this Act.
For the purposes of this Act, if an entity provides another entity with access to data:
the entity that provides access is taken to retain a copy of the data; and
the entity to which access is provided is taken to collect a copy of the data.
The following are data scheme entities:
data custodians of public sector data;
accredited entities.
An entity is a data custodian if the entity:
is a Commonwealth body; and
is not an excluded entity; and
either:
controls public sector data (whether alone or jointly with another entity), including by having the right to deal with that data; or
has become the data custodian of output of a project in accordance with section 20F.
If a data custodian of public sector data shares the data with an intermediary under section 13 as part of a project, the data custodian is taken also to be the data custodian of any ADSP‑enhanced data of the project.
Each of the following is an excluded entity:
the National Data Commissioner and any APS employee made available to the National Data Commissioner under section 47;
the National Anti‑Corruption Commission;
the Inspector of the National Anti‑Corruption Commission;
the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002;
the Australian Federal Police;
that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation;
the Australian National Audit Office;
the Australian Secret Intelligence Service;
the Australian Security Intelligence Organisation;
the Australian Signals Directorate;
that part of the Defence Department known as the Defence Intelligence Organisation;
the Inspector‑General of Intelligence and Security;
the Office of the Commonwealth Ombudsman;
the Office of National Intelligence.
An entity accredited under section 74 as an:
accredited user (an accredited user); or
ADSP (short for accredited data service provider) (an ADSP);
is an accredited entity.
Accredited users are able to collect and use shared data (including by creating output they can provide other entities with access to, or release) in accordance with an applicable data sharing agreement. ADSPs are expert intermediaries who can assist data custodians to prepare and share data appropriately.
Excluded entities cannot be accredited (see subsection 74(1)).
A data scheme entity may do things under this Act in different capacities. In each of those capacities, the entity is taken to be a different data scheme entity. Among other things, this means that a data scheme entity may enter into a data sharing agreement to which it is party in more than one capacity.
For example, the same entity may be party to the agreement in its capacity as data custodian of data to be shared and in its capacity as the accredited entity with which the data is shared.
Project, and output and ADSP‑enhanced data of project
A project involves at least both of the following elements:
an entity (the sharer) shares data with another entity (the user), either directly or through another entity (the intermediary);
the user collects the data and uses the output of the project, which is:
the copy of the data collected by the user; and
any data that is the result or product of the user’s use of the shared data.
The sharer’s authorisation to share data is in section 13. The user’s authorisation to collect and use data is in section 13A.
A project may involve sharing of data by multiple sharers, if multiple entities are data custodians of the data.
If, for the purposes of sharing data under section 13, data services are performed in relation to data, or data is created, by or on behalf of the sharer, the project also involves performing the services or creating the data.
If the sharer shares data with the user through an intermediary, the project also involves both of the following elements:
the sharer shares the data with the intermediary;
the intermediary collects the data and uses the ADSP‑enhanced data of the project, which is:
the copy of the data collected by the intermediary; and
any data that is the result or product of the intermediary’s use of the shared data.
The sharer’s authorisation to share data with the intermediary, and the intermediary’s authorisation to share data with the user on behalf of the sharer, are in section 13. The intermediary’s authorisation to collect data from the sharer and use it is in section 13B.
If the sharer is provided with access to output or ADSP‑enhanced data of the project, the project also involves the sharer’s collection and use of the output or ADSP‑enhanced data.
The sharer’s authorisation to collect and use the output or ADSP‑enhanced data of the project is in section 13C.
Combining projects
A data sharing agreement may treat multiple projects as a single project, as long as they all have the same data sharing purpose or purposes and the same sharer and user and (if applicable) intermediary.
Successive projects
If the user in a project shares data that is output of the project as part of a later project:
the copy retained by the user continues to be output of the earlier project; and
the copy collected by the user in the later project is output of the later project in accordance with paragraph (1)(b); and
if the sharing in the later project is done through an intermediary—the copy collected by the intermediary in the later project is ADSP‑enhanced data of the later project in accordance with paragraph (3)(b).
A data sharing agreement may allow the user to share output under section 13 as part of a later project (see section 20D).
Under the data sharing scheme, Commonwealth bodies are authorised to share their public sector data with accredited users, and accredited users are authorised to collect and use the data, in a controlled way. Data may be shared with an accredited user directly, or through an intermediary accredited for the purpose (called an ADSP, short for accredited data service provider).
The sharing, collection and use of data must be part of a project that is for one or more of the defined data sharing purposes, and must be done consistently with the data sharing principles and a registered data sharing agreement that meets the requirements of this Act. Privacy protections apply to the sharing of personal information.
Commonwealth bodies must be the data custodian of public sector data they share (i.e. they must control the data, including by having the right to deal with it). Some Commonwealth bodies are excluded from the scheme.
Some sharing of data is barred (e.g. if the sharing would contravene a prescribed law or an agreement).
An accredited user’s authorisation to use data may in some circumstances extend to providing access to output of the project to other entities, which may or may not be accredited. There are limits on the circumstances in which data sharing agreements may allow this.
If sharing, collection or use is authorised by this Chapter, the authorisation has effect despite any other law of the Commonwealth or a State or Territory.
Data custodians and accredited entities must comply with the rules made by the Minister and data codes made by the National Data Commissioner and meet other responsibilities under this Chapter.
This Act mainly relies for its constitutional basis on the matters set out in subsection 13(4) (constitutional requirements for authorisation for data custodian to share public sector data) (but see also subsections 42(2) and 61(2)).