41.77 Parliamentary departments include the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services (DPS). The Department of the Senate and the Department of the House of Representatives provide advice and support to the Senate and the House of Representatives respectively, and to committees, senators and members. The DPS is responsible for providing information, analysis and advice to the Australian Parliament, maintaining and facilitating access to the Parliamentary Library’s electronic and print information resources and providing a range of other services, such as information technology, broadcasting and Hansard services. Secretaries of the Department of the Senate, the Department of the House of Representatives and the DPS have roles and responsibilities similar to those of agency heads of the Australian Public Service.
41.78 The Presiding Officers of the Parliament—the President of the Senate and the Speaker of the House of Representatives—are responsible for the administration of the three parliamentary departments. This role has been likened to the role of a Minister in relation to a department of state. An independent Parliamentary Service Commissioner provides advice to Presiding Officers of both Houses of Parliament on the management policies and practices of the Parliamentary Service, and, if requested by the Presiding Officers, may inquire into and report on matters relating to the Parliamentary Service that are specified in the request.
41.79 The Office of the Parliamentary Librarian is an office within the DPS. The main function of the Parliamentary Librarian is to provide information, research, analysis and advice to senators and members of the House of Representatives in support of their parliamentary and representational role.
Application of the Privacy Act to parliamentary departments
41.80 Section 81(1)(a) of the Parliamentary Service Act 1999 (Cth) provides that, in any Act other than the Privacy Act, a reference to an ‘agency’ includes a reference to a Department of the Parliament established under the Parliamentary Service Act. Since Departments of the Parliament established under the Parliamentary Service Act fall outside the definition of an ‘agency’ under the Privacy Act, they are exempt from the operation of the Privacy Act.
41.81 There is no reference to the exemption in either the Privacy Act or the Public Service Act, from which the Privacy Act derives its definition of a department. The secondary legislative materials relating to the Parliamentary Service Act do not disclose a policy justification for the exemption of the parliamentary departments from the Privacy Act.
41.82 The application of the Privacy Act to parliamentary departments will be affected by the constitutional doctrine of parliamentary privilege, discussed above. For example, parliamentary departments conduct a number of activities that fall within the freedom of speech and debate. These could include, for example: the preparation of a document for the purposes of, or incidental to, the transacting of parliamentary business’; and the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or committee and the document so formulated, made or published. Furthermore, the ‘internal affairs privilege’ could, in exceptional circumstances, extend to the management and administration of parliamentary departments.
Submissions and consultations
41.83 In DP 72, the ALRC asked whether the parliamentary departments should continue to be exempt from the Privacy Act and, if so, what should be the scope of the exemption.
41.84 In consultations with the ALRC, the parliamentary departments advised that they were not aware of a policy justification for this exemption, beyond the requirements of parliamentary privilege. PIAC and the Cyberspace Law and Policy Centre submitted that there was no policy justification for parliamentary departments to continue to be exempt from the Privacy Act. The Australian Privacy Foundation also supported the removal of the exemption.
41.85 The OPC did not provide a specific view on whether the parliamentary departments should continue to be exempt from the operation of the Privacy Act. It commented, however, that ‘there should be a clear public interest enunciated for any exception to be maintained’. The OPC noted that, if these bodies are to be exempt from the operation of the Privacy Act:
any exemption should be explicitly referred to in the Privacy Act;
exemptions should be included in a schedule to the Act; and
all entities that are not covered by the Privacy Act should implement and make publicly available a set of standards for the handling of personal information.
41.86 Beyond the requirements of the constitutional protections for the political process, the ALRC is not aware of any policy justification for exempting parliamentary departments from the operation of the Privacy Act. This position was supported by the parliamentary departments themselves. Accordingly, the ALRC is of the view that the Privacy Act should apply to the parliamentary departments. As recommended, above, the Act will be subject to the implied constitutional doctrines of freedom of political communication and parliamentary privilege.
Recommendation 41-3 Parliamentary departments should be included within the definition of ‘agency’ in the Privacy Act by removing the words ‘other than the Privacy Act 1988’ from section 81(1) of the Parliamentary Services Act 1999 (Cth).
Parliamentary Service Act 1999 (Cth) s 54.The DPS is a Department of the Parliament established by resolutions passed by each House of the Australian Parliament: Australian Parliamentary Service Commissioner, Annual Report 2004–05 (2005),App A.
 Australian Parliamentary Service Commissioner, Annual Report 2006–07 (2007), 6.
Parliamentary Service Act 1999 (Cth) s 7.
Australian Parliamentary Service Commissioner, Annual Report 2006–07 (2007), 1.
Parliamentary Service Act 1999 (Cth) ss 38A, 38B.
Parliamentary Privileges Act 1987 (Cth) s 16(2)(c).
Ibid s 16(2)(d).
 The Joint Committee of the House of Lords and House of Commons in the United Kingdom advised, however, that ‘management functions related to the provision of services in either House are only exceptionally subject to privilege’. The Report went on to note that—when management is dealing with matters directly related to proceedings within the scope of the freedom of speech and debate—the management and administration of House departments are not generally subject to privilege: Parliament of United Kingdom—Joint Committee of the House of Lords and House of Commons, Parliamentary Privilege—First Report (1999), 83.
Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Question 34–2.
Departments of the Senate‚ House of Representatives and Parliamentary Services, Consultation PC 183, Canberra, 22 October 2007.
Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.
Australian Privacy Foundation, Submission PR 553, 2 January 2008.
Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.