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Contents (1998 - 133)
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Privacy and Personal Information Protection Act 1998 No 133
Current version for 1 July 2017 to date (accessed 23 September 2017 at 19:07)
Part 4 Division 2
Division 2 Functions of Privacy Commissioner
36   General functions
(1)  The Privacy Commissioner has such functions as are conferred or imposed on the Commissioner by or under this or any other Act.
(2)  In particular, the Privacy Commissioner has the following functions:
(a)  to promote the adoption of, and monitor compliance with, the information protection principles,
(b)  to prepare and publish guidelines relating to the protection of personal information and other privacy matters, and to promote the adoption of such guidelines,
(c)  to initiate and recommend the making of privacy codes of practice,
(d)  to provide assistance to public sector agencies in adopting and complying with the information protection principles and privacy codes of practice,
(e)  to provide assistance to public sector agencies in preparing and implementing privacy management plans in accordance with section 33,
(f)  to conduct research, and collect and collate information, about any matter relating to the protection of personal information and the privacy of individuals,
(g)  to provide advice on matters relating to the protection of personal information and the privacy of individuals,
(h)  to make public statements about any matter relating to the privacy of individuals generally,
(i)  to conduct education programs, and to disseminate information, for the purpose of promoting the protection of the privacy of individuals,
(j)  to prepare and publish reports and recommendations about any matter (including developments in technology) that concerns the need for, or the desirability of, legislative, administrative or other action in the interest of the privacy of individuals,
(k)  to receive, investigate and conciliate complaints about privacy related matters (including conduct to which Part 5 applies),
(l)  to conduct such inquiries, and make such investigations, into privacy related matters as the Privacy Commissioner thinks appropriate.
(3)  The Privacy Commissioner must consult with the Information Commissioner before preparing any guidelines concerning the information protection principle set out in section 18 (Limits on disclosure of personal information).
37   Requirement to give information
(1)  The Privacy Commissioner may, in connection with the exercise of the Privacy Commissioner’s functions, require any person or public sector agency:
(a)  to give the Privacy Commissioner a statement of information, or
(b)  to produce to the Privacy Commissioner any document or other thing, or
(c)  to give the Privacy Commissioner a copy of any document.
(2)  The Privacy Commissioner is not to make any such requirement if it appears to the Privacy Commissioner that:
(a)  the person or public sector agency concerned does not consent to compliance with the requirement, and
(b)  the person or public sector agency would not, in court proceedings, be required to comply with a similar requirement on the grounds of public interest, privilege against self-incrimination or legal professional privilege.
(3)  A requirement under this section must be in writing, must specify or describe the information, document or thing required, and must specify the time and manner for complying with the requirement.
(4)  This section does not confer any function on the Privacy Commissioner that may be exercised in relation to the Independent Commission Against Corruption.
38   Inquiries and investigations
(1)  For the purposes of any inquiry or investigation conducted by the Privacy Commissioner under this Act (including in relation to a complaint made under Division 3 of this Part), the Privacy Commissioner has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923, and that Act (section 13 and Division 2 of Part 2 excepted) applies (subject to this section) to any witness summoned by or appearing before the Privacy Commissioner in the same way as it applies to a witness summoned by or appearing before a commissioner.
(2)  Subsection (1) does not confer any function on the Privacy Commissioner that may be exercised in relation to the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, Law Enforcement Conduct Commission, Inspector of the Law Enforcement Conduct Commission, staff of the Inspector of the Law Enforcement Conduct Commission or New South Wales Crime Commission.
(3)  Any inquiry or investigation conducted by the Privacy Commissioner under this Act is to be conducted in the absence of the public, except as otherwise directed by the Privacy Commissioner.
(4)  The Privacy Commissioner, in the course of conducting an inquiry or investigation under this Act, must set aside any requirement:
(a)  to give any statement of information, or
(b)  to produce any document or other thing, or
(c)  to give a copy of any document, or
(d)  to answer any question,
if it appears to the Privacy Commissioner that the person concerned does not consent to compliance with the requirement and the person would not, in court proceedings, be required to comply with a similar requirement on the grounds of public interest, privilege against self-incrimination or legal professional privilege. However, the person must comply with any such requirement despite any duty of secrecy or other restriction on disclosure.
(5)  A person is not entitled to be represented by another person at an inquiry or investigation conducted by the Privacy Commissioner except with the leave of the Privacy Commissioner.
(6)  The Privacy Commissioner may allow any person appearing before the Privacy Commissioner to have the services of an interpreter.
39   General procedure for inquiries and investigations
The Privacy Commissioner:
(a)  may determine the procedures to be followed in exercising the Privacy Commissioner’s functions under this Act, including the procedures to be followed at an inquiry or investigation conducted by the Privacy Commissioner, and
(b)  is to act in an informal manner (including avoiding conducting formal hearings) as far as possible, and
(c)  is not bound by the rules of evidence and may inform himself or herself on any matter in any way that the Privacy Commissioner considers to be just, and
(d)  is to act according to the substantial merits of the case without undue regard to technicalities.
40   Personal information digest
(1)  The Privacy Commissioner may, from time to time, prepare and publish a personal information digest setting out the nature and source of personal information held by public sector agencies.
(2)  Any such personal information digest is to be made publicly available.
(3)  The Privacy Commissioner may, from time to time, require a public sector agency to provide the Privacy Commissioner with such details relating to the personal information held by the agency as the Commissioner may require. The public sector agency must comply with the requirement.
(4)  This section does not apply to personal information held by the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the Law Enforcement Conduct Commission, the Inspector of the Law Enforcement Conduct Commission, the staff of the Inspector of the Law Enforcement Conduct Commission or the New South Wales Crime Commission.
41   Exempting agencies from complying with principles and codes
(1)  The Privacy Commissioner, with the approval of the Minister, may make a written direction that:
(a)  a public sector agency is not required to comply with an information protection principle or a privacy code of practice, or
(b)  the application of a principle or a code to a public sector agency is to be modified as specified in the direction.
(2)  Any such direction has effect despite any other provision of this Act.
(3)  The Privacy Commissioner is not to make a direction under this section unless the Privacy Commissioner is satisfied that the public interest in requiring the public sector agency to comply with the principle or code is outweighed by the public interest in the Privacy Commissioner making the direction.
42   Information about compliance arrangements
(1)  The Privacy Commissioner may require a public sector agency to provide the Commissioner with information concerning the arrangements that have been made by the agency to enable the agency to comply with the information protection principles, and any privacy code of practice, applying to the agency.
(2)  Any such requirement must be in writing and specify a time for complying with the requirement.
(3)  This section does not confer any function on the Privacy Commissioner that may be exercised in relation to the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, Law Enforcement Conduct Commission, Inspector of the Law Enforcement Conduct Commission, staff of the Inspector of the Law Enforcement Conduct Commission, New South Wales Crime Commission or Ombudsman’s Office.
43   Disclosure of Cabinet or Executive Council information
(1)  Nothing in this Act or the Health Records and Information Privacy Act 2002 authorises the Privacy Commissioner to require any person or public sector agency to disclose Cabinet information or Executive Council information.
(2)  The Secretary or General Counsel of the Department of Premier and Cabinet may certify that information is Cabinet information. Any such certificate:
(a)  is conclusive of that fact, and
(b)  authorises any person or agency who would otherwise be required under this Act or the Health Records and Information Privacy Act 2002 to disclose the information concerned to refuse to disclose it.
(3)  In this section:
Cabinet information means information that is Cabinet information under the Government Information (Public Access) Act 2009.
Executive Council information means information that is Executive Council information under the Government Information (Public Access) Act 2009.
44   (Repealed)
44A   Oversight of functions by Joint Committee
(1)  The Joint Committee has the following functions under this Act:
(a)  to monitor and review the exercise by the Privacy Commissioner of the Privacy Commissioner’s functions,
(b)  to report to both Houses of Parliament, with such comments as it thinks fit, on any matter appertaining to the Privacy Commissioner or connected with the exercise of the Privacy Commissioner’s functions to which, in the opinion of the Joint Committee, the attention of Parliament should be directed,
(c)  to examine each annual and other report of the Privacy Commissioner and report to both Houses of Parliament on any matter appearing in, or arising out of, any such report,
(d)  to recommend to both Houses of Parliament any changes to the functions of the Privacy Commissioner that the Joint Committee thinks desirable,
(e)  to inquire into any question in connection with its functions which is referred to it by both Houses of Parliament, and report to both Houses on that question.
(2)  Nothing in this section authorises the Joint Committee:
(a)  to investigate a matter relating to any particular conduct, or
(b)  to reconsider any decision to investigate, not to investigate or to discontinue investigation of any particular matter, or
(c)  to reconsider the findings, recommendations or other decisions of the Privacy Commissioner in relation to any particular matter.
(3)  The provisions of Part 4A of the Ombudsman Act 1974 apply in relation to the Joint Committee’s functions under this Act in the same way as they apply in relation to the Joint Committee’s functions under that Act.
(4)  In this section:
Joint Committee means the Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission constituted under the Ombudsman Act 1974 or such other joint committee of members of Parliament as may be appointed to exercise the functions of the Joint Committee under this Act.