Data Availability and Transparency Regulations 2022

Contents

1Name#

This instrument is the Data Availability and Transparency Regulations 2022.

3Authority#

This instrument is made under the Data Availability and Transparency Act 2022.

4Definitions#

In this instrument:

Act means the Data Availability and Transparency Act 2022.

System Operator has the same meaning as in the My Health Records Act 2012.

5Prescribed provisions#

For the purposes of subparagraph 17(4)(a)(i) of the Act, the provisions of Acts and legislative instruments specified in the following table are prescribed.

Note: Sharing that is prohibited by a prescribed provision is barred under the data sharing scheme.

Prescribed provisions
Act or legislative instrument	Prescribed provisions
Anti-Money Laundering and Counter-Terrorism Financing Act 2006	section 122
Australian Crime Commission Act 2002	section 25A
Australian Federal Police Act 1979	subsection 40ZA(2)subsection 60A(2)
Australian Federal Police Regulations 2018	section 17section 28
Australian Prudential Regulation Authority Act 1998	section 56
Australian Security Intelligence Organisation Act 1979	subsection 8A(5)section 81section 92
Aviation Transport Security Act 2004	section 74
Building and Construction Industry (Improving Productivity) Act 2016	section 106, as that section continues to apply in accordance with item 330 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
Child Support (Assessment) Act 1989	section 150section 150AA
Child Support (Registration and Collection) Act 1988	section 16section 16AA
Crimes Act 1914	section 15JQsection 15JRsection 15LBsection 15LCparagraph 85ZS(1)(d)paragraph 85ZU(b)paragraph 85ZW(b)
Criminal Code	section 104.22section 105.45section 122.1section 122.2section 122.3section 122.4A
Defence Act 1903	section 73A
Defence Force Discipline Act 1982	section 58
Defence (Inquiry) Regulations 2018	section 36section 37
Defence Regulations 2026	section 39
Health Insurance Act 1973	section 106ZR
Inspector-General of the Australian Defence Force Regulation 2016	subsection 21(3)
Intelligence Services Act 2001	section 41
Law Enforcement Integrity Commissioner Act 2006 (as that Act continues to apply under the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022)	section 77Bsubsection 90(6)section 92
National Anti-Corruption Commission Act 2022	section 98section 101section 228section 233section 234
National Redress Scheme for Institutional Child Sexual Abuse Act 2018	section 99section 104
National Security Information (Criminal and Civil Proceedings) Act 2004	paragraph 29(5)(e)subsection 38PE(3)subsection 38PF(2)section 40section 41section 45section 46section 46Asection 46Bsection 46Dsection 46Fsection 46Gsection 46H
Proceeds of Crime Act 2002	section 217clause 16 of Schedule 1
Public Interest Disclosure Act 2013	section 65
Public Service Act 1999	subsection 72A(2)subsection 72B(2)
Reserve Bank Act 1959	section 79A
Surveillance Devices Act 2004	section 45
Telecommunications Act 1997	subsection 315H(3)subsection 317ZF(1)
Telecommunications (Interception and Access) Act 1979	section 63section 108section 133section 181Asection 181Bsection 182section 182A
Witness Protection Act 1994	subsection 16(3)section 22section 22Asection 22Bsection 28section 28A

6Order or direction etc. under prescribed provision#

For the purposes of subparagraph 17(4)(a)(ii) of the Act, the provisions of Acts and legislative instruments specified in the following table are prescribed.

Note: Sharing that is prohibited by an order, direction, certificate or other instrument made by an officer of the Commonwealth under a prescribed provision is barred under the data sharing scheme.

Prescribed provisions
Act or legislative instrument	Prescribed provisions
Foreign Proceedings (Excess of Jurisdiction) Act 1984	subsection 7(1)subsection 13(1)subsection 14(2)subsection 14(3)
National Security Information (Criminal and Civil Proceedings) Act 2004	subsection 26(2)subsection 26(3)

7Barred data custodians: entities acting in a capacity under My Health Records Act 2012#

For the purposes of paragraph 17(4)(b) of the Act, the following are prescribed as entities that must not share data in the capacity of data custodian:

(a)the System Operator, while acting in its capacity as System Operator;

(b)the data custodian within the meaning of the My Health Records Act 2012, while acting in its capacity as data custodian within the meaning of that Act;

(c)the Chief Executive Medicare, while acting in his or her capacity as a registered repository operator under section 38 of, or clause 10 of Schedule 1 to, the My Health Records Act 2012;

(d)any other entity that is a participant in the My Health Records system within the meaning of the My Health Records Act 2012, while acting in its capacity as participant in the My Health Records system within the meaning of that Act.

8Circumstances in which sharing is barred: Commonwealth Electoral Act 1918#

For the purposes of paragraph 17(4)(c) of the Act, sharing is barred if the data was collected for the purposes of:

(a)the Commonwealth Electoral Act 1918; or

(b)the Referendum (Machinery Provisions) Act 1984.

9Circumstances in which sharing is barred: Director of Public Prosecutions Act 1983#

For the purposes of paragraph 17(4)(c) of the Act, sharing is barred if:

(a)the data is the contents of, or an extract from, an instrument given or furnished to the Director of Public Prosecutions under subsection 8(1) of the Director of Public Prosecutions Act 1983; and

(b)the relevant time for the purposes of section 8 of that Act has not occurred in relation to the instrument.

10Circumstances in which sharing is barred: Health Insurance Act 1973#

For the purposes of paragraph 17(4)(c) of the Act, sharing is barred if the data is held by the Director of Professional Services Review for the purposes of Part VAA (the Professional Services Review Scheme) of the Health Insurance Act 1973.

11Circumstances in which sharing is barred: Migration Act 1958#

For the purposes of paragraph 17(4)(c) of the Act, sharing is barred if:

(a)the data is health information (within the meaning of the Privacy Act 1988) about a person, including a deceased person; and

(b)the data is included in a record held by, or on behalf of, the Department administered by the Minister administering the Australian Border Force Act 2015; and

(c)the record was created at a time when the person was a detainee within the meaning of the Migration Act 1958.

12Circumstances in which sharing is barred: Privacy Act 1988#

For the purposes of paragraph 17(4)(c) of the Act, sharing is barred if the data is COVID app data within the meaning of the Privacy Act 1988.

13Circumstances in which sharing is barred: Royal Commissions Act 1902#

For the purposes of paragraph 17(4)(c) of the Act, sharing is barred if the data:

(a)was produced by, or given to or obtained by, a Royal Commission within the meaning of the Royal Commissions Act 1902 (whether or not the data is still required for the purposes of the Royal Commission); and

(b)has not been made publicly available in accordance with that Act.

Sourced from the Federal Register of Legislation at legislation.gov.au, © Commonwealth of Australia, licensed under CC BY 4.0. Compilations may have been reformatted.