Child care services

69.76 A growing number of Australian children come into contact with formal child care before commencing school.^[86] Vacation and before and after school care is also provided by child care services for school aged children. As with schools, child care services collect a large amount of personal information about a child, and his or her family, in order to provide a service.

69.77 A wide range of formal child care services are available, and each has a different structure. They include community-based non-profit services, services administered by local councils, individuals providing care in their own homes, privately owned and managed centres (including some owned by publicly listed companies), and services provided by employers attached to the workplace of parents. Regulation of the sector is shared between the Australian Government and the states and territories.

69.78 The application of privacy laws to the child care sector is confusing.^[87] Larger private or non-profit businesses running child care centres are subject to the NPPs, but many smaller centres, most non-profit services and individuals running a service within their own home would fall within the small business exemption to the Privacy Act.^[88] Some otherwise exempt small businesses, however, may fall within the definition of a health service provider under the Privacy Act or state health information legislation. Services operated by a state, territory or local council are subject to any relevant state or territory privacy legislation or scheme.^[89]

69.79 National standards have been developed for child care services, and have been utilised to inform child care regulations, funding guidelines and information resources.^[90] The degree of implementation has varied between jurisdictions. Each set of standards includes a standard on maintenance of records listing the information (most of which would fall within the definition of personal information) that must be kept confidential, although they differ on when that information may be disclosed.^[91] Some child care centres have their own privacy policies in place to govern the collection, use and disclosure of personal information.

69.80 For the administration of payments under the Child Care Benefit scheme, child care services are required to transfer information about child attendances to the Department of Education, Employment and Workplace Relations.^[92] The information requirements have become more rigorous since the introduction of the Child Care Management System, which is designed to make the industry more accountable.^[93] Information held by the Department is subject to the Privacy Act, and staff are also subject to the confidentiality provisions of the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth).^[94]

Submissions and consultations

69.81 The Department of Families, Community Services and Indigenous Affairs was previously responsible for the Child Care Management System, and submitted to this Inquiry that the specific privacy and secrecy provisions in family assistance law provide adequate privacy protection for personal information transferred to the Government by child care services.^[95] The NCYLC indicated that the application of privacy laws is confusing in the area of child care services, given the variety of services, varying regulatory mechanisms and the possible range of applicable privacy laws.^[96] The NCYLC supported a national strategy to review privacy policies and standards in child care services.

ALRC’s view

69.82 Most of the concerns about the handling of personal information in child care services stem from the broad range of services available, the varying regulatory structures applied to the services, and the resulting confusion about the applicable privacy requirements. The ALRC’s recommendations to achieve nationally consistent information privacy laws across federal, state and territory jurisdictions will help substantially in reducing the confusion by ensuring that consistent privacy principles apply regardless of the regulatory structure in place for the particular child care service.^[97] In the absence of more specific concerns about the handling of personal information in child care services, the ALRC does not recommend specific reform in this area.