38.24 A state or territory instrumentality is an ‘organisation’ for the purposes of the Privacy Act. Accordingly, a state or territory instrumentality is subject to the private sector provisions of the Act. The Governor-General may, however, make regulations under s 6C(4) of the Privacy Act to prevent a state or territory instrumentality from being treated as an organisation.
38.25 Section 6C(4) provides that, before any such regulations are made, the Minister must be satisfied that the state or territory in question has requested that the instrumentality be prescribed as falling outside the definition of organisation for the purposes of the Act. Further, the Minister must consider certain factors when making such regulations. These are:
whether treating the instrumentality as an organisation for the purposes of the Privacy Act adversely affects the government of the state or territory;
the desirability of regulating the handling of personal information by the instrumentality under the Privacy Act; and
whether a state or territory law regulates the handling of personal information by the instrumentality to a standard that is at least equivalent to the standard that would apply to the instrumentality under the Privacy Act.
38.26 The Minister also must consult with the Privacy Commissioner about these factors. At present, no state or territory instrumentalities have been prescribed.
38.27 The Revised Explanatory Memorandum to the Privacy Amendment (Private Sector) Bill 2000 (Cth) states that:
One of the purposes of [sub-clause 6C(4)] is to recognise that Commonwealth regulation of a State or Territory instrumentality (for example a Corporations Law company, society or association) that performs core government functions is inappropriate, if such regulation would curtail the capacity of the State or Territory to function as a government.